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iPhone, Gizmodo, and moral clarity about crime

Apple is taking flak for taking a hard line on the prototype iPhone that was obtained by Gizmodo. But it shouldn’t apologize for trying to protect its property.

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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.”

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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.”