No, Actually, It’s Not Like That At All

Last night I had the following brief Twitter exchange with a fellow about the whole Gizmodo-stolen iPhone affair:

ddemaree: @esoneill @chartier Property != information. If the seller had sold them photos of the stolen iPhone, they might've been in the clear.

esoneill: @ddemaree @chartier But, arguably, all property contains information of some kind. The Watergate tapes were property as well.

ddemaree: @esoneill – True, but 1) the Watergate tapes were surrendered, not stolen and 2) Presidential records aren't exactly private property.

esoneill: @ddemaree Agreed, but imagine if the physical tapes themselves were stolen. Does that make Watergate the journalistic equivalent of this?

Yeah, what if?

All of you listen to me very carefully: There are no meaningful similarities between Gizmodo's alleged involvement in the iPhone theft and Watergate, and it worries me that some of you seem to think that there is.

Which is why, if you'll indulge me, we're going back to school for the next however-long-it-takes-you-to-read-this.

To start, I think Edmund here is confusing the Watergate tapes—i.e., the ones Nixon secretly recorded in the White House—with the Pentagon Papers, the latter of which were leaked to a New York Times reporter by a Defense Department analyst named Daniel Ellsberg. The Papers' contents were a classified DoD study, detailing the history U.S. involvement in Vietnam up to and during the Vietnam War (which at that time was still going on), which showed the government had misled the public about the war on numerous occasions.

Nixon's Watergate tapes are arguably less significant as historical documents, but are far more infamous, maybe because Nixon makes a far more compelling villain than the entire U.S. military establishment. Regardless, they're a poor point of comparison for the stolen iPhone since (unlike the Pentagon Papers) the Watergate tapes were not leaked directly to the press. The press got them, sure, but only after they'd been subpoenaed by the Justice Department and surrendered by the Nixon White House after a weeks-long constitutional crisis.

These days Ellsberg is seen as a hero for blowing the whistle on a war most people see as, at best, a military failure, but at the time things weren't so clear cut, and the Pentagon and White House made a serious effort to prosecute him for treason. (As in full-blown, punishable-by-death treason.)

It's also not true that the New York Times simply published Ellsberg's (according to the Pentagon) stolen files without troubles of their own. Before publishing the Pentagon Papers the Times did talk to their lawyers, who advised them against publishing the material. After the Papers were published the Justice Department sought and got an injunction against the paper preventing them from publishing any more classified material, which the Times appealed all the way to the Supreme Court, and ultimately got declared as unconstitutional prior restraint.

All that is to say: the Pentagon Papers leak may be the most obviously right example of a news outfit publishing something they shouldn't have had access to in American history, and even then it wasn't obvious they'd get away with it. And, unlike the way Gizmodo obtained their secret iPhone prototype, the Times didn't solicit the documents or pay for them.

So, while we're on the subject, let's talk about another important distinction that's been glossed over in the discussion of iPhonegate: the difference between intellectual property and real property.

Property laws are some of the oldest, and simplest, laws we have here in the U.S. On a basic level they're not much more complicated than that one of the commandments about not stealing. Even though the law refers to private information (like trade secrets) as "intellectual property," there is a major distinction drawn between information crimes and crimes such as destruction of property or theft.

California state law defines theft in terms of misappropriation: if you take possession of an object that's not yours for any reason other than trying your damnedest to give it back to its owner, you've stolen it. If you sell it to a third party, not only have you stolen it, but the people you sold it to are (at the very least) accessories to theft. And if those people, having knowingly bought stolen property, then take apart and effectively destroy the object before posting photos and video of it to their blog, they definitely are guilty of something.

(I think that last point is very important, and I'm surprised it hasn't been talked about more. Gizmodo didn't simply take possession of the prototype iPhone—they dismantled it, and took pictures of themselves dismantling it. That's not journalism, that's destruction of property.)

I'm not a lawyer, which is why it's good for armchair legal scholars like me that Gizmodo seems to have gone out of their way to turn this into an open-and-shut property crime case, masquerading as a battle over whether bloggers are journalists. Engadget wisely limited their coverage to just photos, which is why (as far as we know) they're not a target of this investigation. It's possible Gizmodo may be able to claim protection under the shield law, but if so that's a legal hack, not proof that they're innocent.

The facts of this case lend themselves to extreme examples, and it's annoying and frustrating to not only see people compare this affair to one of the saddest recent chapters in American history, but to do so incorrectly.

Laws like California's shield law are meant to ensure a news organization's right to blow the whistle on public or private misdeeds, but the intent of the law presumes that the information being published is in the public interest. In other words, it's designed around the Pentagon Papers, or the Watergate tapes, or a secret memo about MegaAgroCorp infecting cabbages with baby-killing toxins. It's for things people need to know.

The public doesn't have a right to know anything it wants just because it wants to. Certainly not to see the insides of Apple's next iPhone a few weeks early.