iPhone, Gizmodo, and moral clarity about crime

For the past couple of weeks, the tech world has been buzzing about the “outing” of a prototype of Apple’s next-generation iPhone on a technology blog called Gizmodo.com.

Gizmodo got its hands on the device by paying $5,000 to a guy named Brian Hogan, who found it in a Silicon Valley bar, where it had been lost by a hapless Apple software engineer celebrating his 27th birthday. Although the case seems to involve several fairly straightforward violations of the law, reaction to it has been anything but straightforward, and it’s worth asking why.

California law, like the law of every other state, provides that if you find lost property and know who the owner is, yet fail to make reasonable efforts to return it, you’re guilty of theft.

In this case, not only did Mr. Hogan reportedly not make reasonable efforts to return the lost property to Apple, but he allegedly engaged what is commonly called a “fence” to contact various technology blogs offering to sell the phone to the highest bidder.

One of these blogs was Gizmodo, which undoubtedly realized that what Hogan was offering was tainted goods. California law also makes it clear that if you receive property that has been “obtained in any manner constituting theft,” you’ve committed a crime. So what did Gizmodo do when, a couple weeks after the phone had been lost, it was given the opportunity to buy it for $5,000? It bought it for $5,000.

Under the direction of its editor, Jason Chen, Gizmodo then posted photos and videos of the device on its Web page. During the two weeks since it posted its first of several articles about the phone, the site has attracted more than 4 million hits – a bonanza for a website previously unknown to the uninitiated.

In terms of the legalities, this is pretty clear.

By making an admittedly weak effort to return the iPhone to Apple, Hogan – in the eyes of the law – committed theft. And Gizmodo committed another crime when it bought property it had good reason to believe was illicitly obtained.

It’s no surprise that the San Mateo County Sheriff’s Office has been treating the case that way, conducting a search of Mr. Chen’s house, and, reportedly with the urging of Apple, looking into the possibility of criminal charges.

Yet the response from various commentators has been anything but clear-cut. The Electronic Frontier Foundation said that San Mateo police went “too far” in executing a warrant on Chen’s house. The New York Times’s media columnist, David Carr, wrote that Apple has been “churlish” in pressing the police to pursue the case. Newsweek, quoting a source, said that Apple’s brand was likely to suffer “backlash” as a result of its actions. Even Jon Stewart of “The Daily Show,” who’s usually right, has scolded Apple’s response as being “out of control.”

So what explains this apparent sympathy for Hogan and Chen, and hostility toward Apple and the San Mateo police? One possibility is a basic confusion about the fact that finding and failing to return lost property is a crime, a confusion that may be a vestige of the common, but legally mistaken, schoolyard adage, “finders keepers, losers weepers.”

A second explanation may be the sense that “investigative journalists,” whether in print or on news-related blogs, should enjoy special privileges when in pursuit of a story. Indeed, California law does shield journalists from police searches for confidential source information.

The problem for Gizmodo is that the shield law has a specific exemption when the police are looking for evidence that the journalists (in this case, the Gizmodo editor) themselves committed crimes, as seems to be the case here.

Third, some observers seem to view Gizmodo as David to Apple’s Goliath. They assume that there’s a certain justice in the enterprising and scrappy blog site felling the arrogant and supersecretive computer behemoth. Perhaps. But might alone, whether large or small, has never made right, and if David were to steal Goliath’s slingshot, it’s not clear why he shouldn’t be prosecuted for it.

Finally, there’s the misguided idea, long espoused by many in the tech community, that “information wants to be free.” But whether it’s in the form of proprietary trade secrets embodied by Apple’s latest iPhone or intellectual property subject to seemingly endless illegal downloading and file sharing every second of every day, information is not free.

It takes a lot of time and energy and money to write books, compose music, create movies, and design and market electronic devices like iPhones. Such information deserves legal protection, even when it’s been lost in a bar.

Stuart Green is a professor of law at Rutgers Law School and author of “Lying, Cheating, and Stealing: A Moral Theory of White-Collar Crime.”