The lost iPhone and a close ethical call

So an Apple engineer walks into a beer garden….

A story that begins like that should have at least a little potential.

Especially when you learn that, in said beer garden, the young software engineer loses a top-secret prototype of a next-generation iPhone. A stranger finds the phone. The stranger sells the phone to a tech blogger for $5,000. And the blogger posts his assessment of the new (and possibly improved, though that’s not so clear) iPhone.

Now here comes the neat punch line … only there isn’t one, because now the tech blog’s story about how it obtained the missing iPhone has turned into a giant kerfuffle. Pitted against each other in this expose-that-doesn’t-expose-that-much are Apple Inc., with its imperative of maintaining its property and trade secrets, and Gawker Media, parent of Gizmodo, with its imperative of exploring a company and a product of great public interest.

So who deserves our support: condescending and self-congratulatory Gawker or controlling and obsessively secretive Apple? It’s a calculation made all the harder because the new media outlet introduced the oft-corrupting dollar into the journalism equation.

Still, what one (business)man sees as receiving stolen property, another man sees as a robust expansion of freedom of information. We’re all the better off when the law bends toward support of the latter, even if it tends to forgive the former.

Supreme Court Justice John Paul Stevens wrote in a 2001 majority opinion (in Bartnicki v. Vopper) that a radio host could not be held legally liable for broadcasting phone recordings, even though the source of the recordings obtained them illegally. “A stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern,” Stevens declared.

It may not be a matter as weighty as war or domestic tranquillity, but the fate of Cupertino, Calif.-based Apple and its products is hugely important to millions of people.

Gizmodo and many other websites obsess on the company’s every move. So do Wall Street investors who have turned Apple into a $238-billion company, based on its stock value. So it comes as no surprise that one of Gizmodo’s bloggers, Jason Chen, would jump at the chance to get a look at the next iteration of the fantastically popular iPhone.

In just one of many posts about the phone episode, Gizmodo explained how Apple employee Gray Powell, celebrating his 27th birthday, left behind the “precious prototype” at Gourmet Haus Staudt in Redwood City.

Sitting on the next barstool, Anonymous Phonephinder (my moniker, not Gizmodo’s) grabbed the phone. Gizmodo would have us believe that its source made earnest efforts to return the phone, waiting in the beer garden “for some time” and then calling “a lot” of Apple phone numbers the next day.

Gizmodo’s account leaves the impression that the pure-hearted Phonephinder got the runaround from Apple functionaries. I don’t suppose the tech site asked their source whether he/she thought of simply driving the missing phone back to Apple headquarters.

Instead, Phonephinder, the Good Samaritan, took the obvious recourse: He went about selling his newly acquired property.

Gawker media boss Nick Denton told the New York Times and others that some news outlets were “so preoccupied with respectability” that they shied away from such aggressive tactics. By being transparent about its pay-to-play deal, Denton suggested the site had covered all its ethical bases.

Paying for information may be emerging as a norm, particularly at gossip sites like TMZ. But there’s a reason more traditional news organizations have refused to pay for information: They have a reasonable fear that the profit motive will drive sources to embellish stories, if not concoct information out of whole cloth.

Gizmodo argues persuasively that it verified the authenticity of the phone. But can its tactics be forgiven as part of the “fast, competitive, ruthless, sensationalist” ethos that Denton embraces?

Even if the ethical and practical questions don’t give pause, the legal conundrum can’t be so easily shucked aside. That became clear when lawmen raided Gizmodo blogger Chen’s home Friday, seizing computers and other electronic equipment for investigation of a possible felony. (Whether the investigation is aimed only at Phonephinder, or others, remains unclear.)

First Amendment experts say San Mateo County authorities overstepped their bounds, using a search warrant to target a legitimate media representative instead of a subpoena that Gizmodo would have had a chance to fight in court.

But the issues are far from settled. Would an appellate judge agree with me, and many journalists, that regardless of Gizmodo’s tactics, the iPhone story meets the test as “a matter of public concern”? That’s one legal threshold for deciding whether the media should be protected when they publish material someone else obtained illegally.

Nine million Gizmodo readers who clicked on the story would seem to answer yes. (Though I concede I was less than fascinated by the site’s revelations about the new iPhone: A 16% larger battery! A new camera flash! Split buttons for volume!)

Still, the website’s payment for the phone — which it returned last week at Apple’s request — could well muddy up the press privilege argument. Said a friend who’s a criminal lawyer: “When you pay that much for something, you know it’s not right. You become complicit in the crime. You can’t buy a Rembrandt off the back of a truck.”

But despite good reasons for queasiness about paying for information, even practitioners of checkbook journalism deserve some protection. I hope we wouldn’t even consider jailing a journalist who, say, paid to get a report on dangerous drinking water that had been lifted from a government office.

It’s harder to defend the high journalistic ground when it comes to Gizmodo’s gee-whizzery about consumer electronics and its preoccupation with its own cloak-and-dagger reporting.

Still, I’m throwing in my lot with the tech bloggers. Better them than a company that treats news of every expanded display or added data port as if it were some sort of state secret.