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.

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