Apple, Gizmodo, and the First Amendment

Can Gizmodo get into legal trouble for publishing details of Apple’s next-generation iPhone?

Adam Freedman
May 11, 2012

Today’s Topic: Raiders of the Lost iPhone – Part Two!

And now, your daily dose of legalese: This article does not create an attorney-client relationship with any listener. In other words, although I am a lawyer, I’m not your lawyer. In fact, we barely know each other. If you need personalized legal advice, contact an attorney in your community.

This is the second of two articles on the difference between lost and stolen property. In these articles I’m exploring the recent incident in which a prototype fourth-generation iPhone was lost by an Apple engineer and made its way into the hands of Tech blog Gizmodo. In the earlier article, I looked at whether the phone was technically “stolen” under the law.

Gizmodo Versus Apple

Today, I’ll look at a separate question: whether Gizmodo had the right to publish details about Apple’s top-secret phone. Reader Mike C. asks how do Gizmodo’s First Amendment rights play into this?

The quick answer is that Mike has put his finger on a cutting edge issue in the law. It’s true that the First Amendment, as well as journalist shield laws, protect journalists and bloggers. But experts disagree on whether the laws protect Gizmodo from charges that it disclosed trade secrets or received stolen property.


The iPhone Saga: a Recap

First, a quick recap of the iPhone saga. On March 18, 2010, Apple engineer Gray Powell went to a German-style beer garden in Redwood City, California and, after downing a few steins, exited the bar but without the next-generation iPhone he had been carrying. The phone was found by a college student named Brian Hogan who eventually sold it to Gizmodo, which proceeded to post a detailed review of the device, complete with photos and technical specifications. Next thing you know, Silicon Valley cops launch an investigation, including a search of the home of Gizmodo editor Jason Chen.

Are Bloggers Protected by The First Amendment?

Although there has been some controversy about the status of bloggers, they generally count as “the press.”

Some commentators argue that Gizmodo could be liable for damages under California’s Uniform Trade Secrets Act. That statute allows a company like Apple to sue any person who discloses its confidential trade secrets.

But, as Mike asks: what about the First Amendment? It’s true: the First Amendment guarantees freedom of the press. Although there has been some controversy about the status of bloggers, such as those who write for Gizmodo, they generally count as “the press.” That means Gizmodo’s editors can’t be thrown in jail for running the iPhone story. But it doesn’t mean that the press never faces legal consequences for its actions. For example, if a newspaper prints a damaging story about you, you can sue the newspaper for libel, notwithstanding “freedom of the press.” 

If Apple decides to sue Gizmodo under the Trade Secrets Act, it will have to prove that the blog knew or had reason to know that Hogan had obtained the mystery iPhone “by improper means.” As we discussed in our previous article on the difference between lost and stolen property, it’s not clear that Hogan committed theft when he appropriated the iPhone; however, it is likely that he at least violated a California Civil Code provision that requires the finder of lost property to either return it to the owner or turn it into the police.

Did Apple Take Reasonable Steps to Protect the Phone?

Apple would also have to establish that the details of its next-gen iPhone are, in fact, “trade secrets.”   You’d think that’s a no-brainer, but the law requires the owner of a trade secret to make “reasonable efforts” to maintain secrecy. Gizmodo might argue that if Apple had really wanted to safeguard the phone, it would not have allowed its employees to tote it around to local watering holes.  On the other hand, Apple can point to the fact that the phone was disguised to look like a regular 3G iPhone as proof that they thought their secret was safe, even in a Silicon Valley beer garden.

The First Amendment and Confidential Sources

A related controversy arose when San Mateo police officers showed up at the home of Gizmodo editor Jason Chen, handed him a search warrant, and carried away his computer and other electronic gear. For those of you who’ve been waiting for a First Amendment issue, here’s your turn.  

[[AdMiddle]In fact, not only does the Constitution frown upon police interference with the press, but there are specific “journalist shield laws” at both the state and federal level. Those laws are designed to protect reporters against police searches aimed at uncovering confidential sources and other work product developed by journalists.

Media advocates argue that the search of Chen’s house violated such laws; after all, you don’t want journalists, bloggers--and even podcasters!--to stop investigating stories for fear that the police will raid their house. But the other side of the argument is that Gizmodo might have compromised its First Amendment rights by breaking the law.  

The First Amendment and Reporters

As we discussed in the last article, it’s possible that Gizmodo committed a crime by paying for stolen property, and the First Amendment does not give journalists license to break the law in the name of newsgathering. If it did, the paparazzi wouldn’t bother with telephoto lenses, they’d just break into celebrities’ houses and snap away. Likewise, you can’t turn a newsroom (or a blogger’s home office) into a warehouse for stolen property, even if that property is useful for a story.  At the end of the day, the First Amendment issue may turn on the question we asked in the last article: was the lost iPhone stolen, or merely “found”?

Perhaps the ultimate lesson here is not even a legal one: be careful of what you pick up in a bar, especially after you’ve had a few drinks.

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