I’ve been lucky to know one of the greatest lawyers out there for a good portion of my life. A man who has literally never lost a case in the time I’ve known him. Not only is he a great lawyer but he’s been a great teacher to me and has straightened out a lot of misconceptions I had about the law.
I’ve been thinking about that since the case of Apple’s iPhone prototype popped up. For those unfamiliar the short version is that a drunk Apple employee left a confidential next gen iPhone at a bar. Someone picked it up and sold it to gadget site Gizmodo for $5,000. Then yesterday the San Mateo police raided the home of the Gizmodo editor who wrote the story about that prototype (which was returned to Apple by Gizmodo after they took a bunch of pictures for their story).
The question now is whether Gizmodo is guilty of a crime
Before I get into that I’d like to quote an excellent article by CNet’s Decian McCullagh and Greg Sandoval which makes the case against Gizmodo.
(Please note: This is not about morality but about law and I’m in no way justifying what Gizmodo did from a moral stand point)
The first relevant fact is a lot of unofficial sources claiming Gizmodo is under investigation. But no one will confirm Gizmodo’s a target. Quoting the CNet article…
CNET has not been able to confirm whether the felony investigation is targeting Gizmodo staff, the iPhone seller, or someone else. A blog post at NYTimes.com, citing unnamed law enforcement officials, said charges could be filed against the buyer of the phone--meaning Gizmodo employees.
That, to me, is telling. What it says is “Apple has a lot of clout in the area and they clearly want a pound of flesh from Gizmodo. But law enforcement can’t see a way to make it work so they’re trying to give Apple what it wants without actually having to pursue a case.”
So while their (unofficial) words might indicate they could pursue a case against Gizmodo their actions tell a different story.
Ask yourself: If law enforcement was after Gizmodo or Gawker Media wouldn’t they have also raided the Gawker offices? Wouldn’t they have subpoenaed the company’s financials? Wouldn’t they have done everything they could to get any available evidence before the company could destroy it?
They would…but they didn’t.
Moving on. One of the great things the CNet article does is to go to an actual lawyer in the area and ask their opinion…
"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."
Cardoza, who has represented high-profile clients including the partner of a woman mauled to death by two of her neighbor's dogs in 2001, said that Gawker Media and Gizmodo have a moral obligation to reveal the seller. "Why wouldn't you reveal the name?" Cardoza said. "Unless you're planning on receiving stolen goods in the future and want to make sure anyone who comes to you with stolen property knows that you will protect their identity, why wouldn't you identify them?"
The problem here: Notice the link to Mr. Cardoza’s web site. That's called self-promotion and it's how "high profile" lawyers make their money.
You see, “there’s no case here” isn’t a quote that gets you mentioned in a news article. Because “Gizmodo might be charged with a crime” is a good story and that’s what any reporter would be after. What Mr. Cardoza doesn’t mention above is that Gizmodo paid for the property and then promptly returned it to the rightful owner. That’s relevant (not from a moral sense since they took a bunch of pictures and then plastered them all over the web but from a legal sense).
Speaking of the morality you can tell Mr. Cardoza is reaching for justification when he starts quoting “moral obligations” as opposed to legal justification. For the record, Gizmodo’s reason not to identify their source is the same reason that every reporter on the face of the earth refuses to identify their sources: Because no source would ever come to them in the future if they did. Not just those sources with stolen property.
Finally, and again to their credit, CNet quotes the California law under which they believe Gizmodo might be guilty of theft…
Under a California law dating back to 1872, any person who finds lost property and knows who the owner is likely to be--but "appropriates such property to his own use"--is guilty of theft. There are no exceptions for journalists. In addition, a second state law says that any person who knowingly receives property that has been obtained illegally can be imprisoned for up to one year.
The problem here is they don’t quote the whole law. The whole quote reads “appropriates such property to his own use, or to the use of another person not entitled thereto, without first making reasonable and just efforts to find the owner and to restore the property to him.”
So the question is not whether Gizmodo used the phone for their own gain (they most certainly did) it’s whether they made a “reasonable effort” to return the phone (which they claim they did). Notable is the fact that the phone was returned to Apple within days of Gizmodo taking possession of it.
The relevant legal teachings I spoke about at the beginning of this post came in the form of two simple points.
Point #1: Law is not a numbers game
People, including many lawyers, think you win cases by having the most on-point legal arguments. But in criminal law you’re dealing with a jury and a jury is made up of 12 ordinary people. Ordinary people like to help those whom they personally like. So a good lawyer realizes the trick to winning a case isn’t having the most law on your side but getting the jury to like you and giving them just enough law to give you what you want. Even if “just enough” amounts to vague terms like reasonable effort and claims of journalistic integrity.
Point #2: Law is about odds not who is right and who is wrong
Trials are expensive and there’s a lot of crime in the world. A District Attorney, when deciding whether to file charges, is not asking themselves whether the offending party was wrong when deciding. They’re asking themselves whether they can win a trial, how much political up side there is to the case and how severe the crime was.
Taking a murderer or rapist off the street is worth way more than going after a wayward journalist.
So the question now becomes “Does Apple have the clout to force the DA to file charges?” San Mateo’s DA, James P. Fox, has been in office for 28 years. So I don’t think Apple can pressure him into taking a case if there’s no upside. In this case he’d have to go after a journalist in a trial where the odds of winning aren’t that great.
Keep in mind Gizmodo consulted an Attorney before publishing their story. That might not make them honest but it makes them look like they were trying to follow the law and that will make it hard to convince a jury otherwise.
I suspect the San Mateo DA is looking for a way to save face right now. If I were them I’d be looking to throw the book at the person who sold the phone to Gizmodo and maybe try to convince Gizmodo to pay a small fine to appease Apple.
But don’t let journalists chasing a good story fool you. There’s no real case here against Gizmodo and I think everyone knows it.