Hold the iPhone: Did Blog Break the Law in iLeak?

By Tanya Roth, Esq. on April 26, 2010 | Last updated on March 21, 2019

It's Apple's world, we just compute in it. Last week, the computer giant reportedly spoke to local law enforcement regarding the loss heard round the world. In case the noise did not reach you, last Monday, the story of a lost iPhone prototype recovered by tech site Gizmodo.com and dissected for all its visitors to see, hit the ether. Apple demanded (and got) the return of the phone allegedly lost by a young engineer during a night of birthday festivities. Until recently, some still believed the whole thing was engineered as a crafty marketing stunt, but the law enforcement seizure of computers, cameras and other items from Gizmodo today seems to put that idea on ice.

According to CNet News, Apple's inquiry is leading to an investigation to be headed by a Santa Clara County, Ca. computer crime task force that goes by the catchy nomenclature REACT, which stands for Rapid Enforcement Allied Computer Team. REACT was set up in 1997 with the goal of aiding Valley tech companies with computer related criminal issues.

CNet reports that Gizmodo, or even the person responsible for selling the prototype to the site, could possibly be charged under a California statute by which any person who finds lost property and knows who the owner is likely to be, but "appropriates such property to his own use," is guilty of theft. If the value of the property exceeds $400, charges of grand theft may be filed.

The law goes on to say that anyone "who appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner," is guilty of theft (emphasis added). According to the story as told by Gizmodo, this might be the sticking point for making the case ... stick. As Gizmodo tells it, the person who found the phone and later sold it to the website called Apple in an effort to inquire about the phone. The company purportedly never got back to him (or her). Would this be enough of a "reasonable effort" to avoid the criminal charge? And what did Gizmodo do in attempts to give back the phone that launched a thousand blog posts?

A further twist is supplied by some of the First Amendment protections afforded a free press. As CNet writes, the U.S. Supreme Court case of Bartnicki v. Vopper found in 2001 that information leaked to a news organization could be legally "published." However, the questions of whether "information" could include physical property like a phone, or even if an iPhone prototype is the matter of great "public concern" discussed under the ruling, remain.  

"Are bloggers journalists? I guess we'll find out," said Nick Denton, founder and operator of Gawker Media, in an email to the AP. He better hope California doesn't follow New Jersey's lead on that question

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