There are a lot of people out there trying to compare this situation to someone finding – and selling – a document “owned” by a company that outlines malfeasance by that company’s officers, according to ABC News. If a news organization pays for that document and thus reveals the malfeasance, they’re doing a public good and might, then, enjoy protection via, in this case, California’s journalistic shield laws, right?
Well, it depends.
Did the news organization do anything illegal in obtaining the information? Did the seller do anything illegal in obtaining the information? Because what people aren’t understanding is that shield laws offer protection to news organizations who refuse to reveal the identity of their confidential sources, they don’t offer blanket immunity from prosecution if the news organization did something illegal in obtaining the information in question, or if the source itself did something illegal in obtaining the information.
A lot of people are focusing on the fact that whomever found the phone tried to get it back to its owner, or to Apple, to no avail, and that the $5,000 Gizmodo gave the person wasn’t a payment for the item itself, but for “exclusivity” in using the item as the subject of a news story. But the situation still stinks. Daniel Ellsberg, in taking the Pentagon Papers to the New York Times, did so out of moral outrage at what the reports said and that they were kept secret from the public. In taking the reports to the paper, he didn’t ask for money, nor was any offered for exclusivity. The public good was served in the reporting, and in keeping sources secret. It’s hard to say that, morally or ethically, a public good was served in giving people a sneak preview of what might be the next iPhone. The iPhone doesn’t represent malfeasance. It resembles proprietary technology, which it is. This is more akin to people stealing nuclear weapons secrets and selling them, not to unearthing corruption.
Let Ellsberg say it himself:
The documents “demonstrated unconstitutional behavior by a succession of presidents, the violation of their oath and the violation of the oath of every one of their subordinates.”It also appeared “a tipster” approached Wired, another technology website, with “thinly veiled requests for money,” according to ABC News, in touting the discovery of the iPhone prototype.
Can’t say that of the 4G iPhone, can you?
Ellsberg was indicted for stealing the papers. He and an associate faced 15 years in prison if they were found guilty under the Espionage Act of 1917, but they escaped prosecution only because of misconduct and illegal evidence gathering precipitated by the Nixon White House.
Here's a far better rundown on the legalities involved here, done by TechCrunch. Here's a pertinent excerpt:
That criminal investigations can surmount journalist protection laws should come as no surprise. "It would be frivolous to assert--and no one does in these cases--that the First Amendment, in the interest of securing news or otherwise, confers a license on either the reporter or his news sources to violate valid criminal laws," the U.S. Supreme Court has said. "Although stealing documents or private wiretapping could provide newsworthy information, neither reporter nor source is immune from conviction for such conduct, whatever the impact on the flow of news."And here's a reminder from r3c.org on what happens when journalists tell true stories about corruption, but break the law in obtaining the information they report on. Naughty, naughty. Here's another killer quote:
If I were prosecuting, I'd go after (any blogger who bought the phone) vigorously," said Michael Cardoza, a prominent San Francisco defense attorney and former prosecutor. "I'd fight them tooth and nail to see that they wouldn't get protection under the shield law. I'd play hardball, in this case. They didn't find the phone as part of their reporting but instead bought property that they knew or should have known wasn't the property of the seller.So it'll be interesting to see how this plays out. I think Gizmodo's claims that warrants and seizures conducted against their reporter are illegal are on shaky ground, as the seizures are in relation to a criminal investigation, not into the publication of the iPhone 4G spoilers.