‘You Got Some ’Splainin’ To Do’

The case of the missing iPhone gets curiouser and curiouser. (Thanks to Desi Arnez and Lewis Carroll for the headline and lede.)

Let me see if I understand the scenario. The original story said that a drunken Apple employee left the phone in a bar. Someone brought it to Gizmodo, which paid $5,000 for it, photographed it, blogged about and then returned it to Apple after Steve Jobs demanded its return.

Today’s version of the story says that police in San Mateo County executed a search warrant Friday night and seized four computers and two servers from the home of blogger Jason Chen, who wrote about the iPhone.

I’m not the first to point out that what we have here is more than one big problem. (Partial nod to “Cool Hand Luke.”)

  • The search warrant said it had to be executed in the daytime. Chen was out to dinner with his wife and returned home at about quarter of ten while the police were still there.
  • The warrant said the computers and servers were “used as the means of committing a felony” and that they tended to show “that a felony has been committed or that a particular person has committed a felony.” Chen’s editor was on record saying that when the money changed hands the folks at Gizmodo didn’t know the phone was stolen. In fact there was nothing in the original story to hint that a theft had occurred. To the contrary, the person who sold it to Gizmodo seemed to be trying to return the phone, but Apple support gave him a ticket number. So it had to wait around until the thing surfaced. It took three weeks.
  • Sidebar: A commenter on NPR said that what Gizmodo did was comparable to stealing someone’s laptop and publishing all the photos and other information on line. Problems with this analogy abound. Two obvious ones: Gizmodo didn’t steal anything. It’s in the position of the innocent art broker who buys a painting that seems to have a legitimate provenance, then displays it (but doesn’t sell it) in a gallery. Gizmodo did not display the contents because Apple wiped it. What’s up on the web is the phone’s hardware, which in the example would be analogous to showing the case, the wall paper, and the keyboard. What’s the problem with that?
  • Sidebar the second: Apple is one of the companies that trains and supports the cops who executed the warrant. I’ve feeling the DA will have some ‘splainin’ to do.
  • Here’s my favorite part, Gizmodo’s parent company Gawker, declared Chen a journalist before the warrant issued. This incident is another skirmish in the battle over whether bloggers are “real” journalists. Bring on the lawyers. The California Shield Law, so-called, protects people “connected with or employed by a newspaper, magazine, or other periodical publication.”  A later section added radio or television news reporters. The law of course was written before blogging existed, but these sorts of statutes are generally construed liberally because of the potential threat to First Amendment rights. In this case Chen was gathering, analyzing and publishing information even if it wasn’t in the form of dead trees and ink or analog images. My bet is that a judge will rule that Chen is protected, though I won’t put odds on how the U.S. Supreme Court will rule.

Coda: I second a commenter on Slate, next time I lose my cell phone, I’m callin’ the cops to bust into the house of someone they think might have had some connection to someone who might have stolen it. Got that?

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