Police in Silicon Valley are trying to determine whether criminal charges should be filed over a lost iPhone prototype and the subsequent posting of details about it on a technology Web site that paid $5,000 for the device.
According to CNET, the investigation is being led by a crime task force that specializes in technology crimes but it's unclear whether the target for these charges would be against Gizmodo, the site that posted the images, or the unnamed person who obtained and later sold the device to the site. (Techmeme)
After details of the device - including video clips and still images of the devices inner-workings - were posted to the site, Apple's lawyers contacted Gizmodo, asking the site to return the device. The site reportedly complied and has since returned the device.
But whether criminal charges are appropriate is hardly a black-and-white issue. From the CNET post:
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. If the value of the property exceeds $400, more serious charges of grand theft can be filed. 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.
Any prosecution would be complicated because of the First Amendment's guarantee of freedom of the press: the U.S. Supreme Court ruled in 2001 that confidential information leaked to a news organization could be legally broadcast, although that case did not deal with physical property and the radio station did not pay its source.
Here are a couple of wildcards:
- Gizmodo - or parent company Gawker Media - did not "find" the lost property.
- The authenticity of the device was still not 100 percent when Gizmodo purchased the device so, therefore, it's unclear if Apple was the actual owner. Add to that argument that the person who sold it to Gizmodo reportedly tried to contact Apple about the found device but was brushed off by the company - on more than one occasion.
- Neither Gizmodo nor anyone else who handled that device obtained it illegally. No one actually stole it from Gray Powell, the software engineer who accidentally left it in a bar weeks earlier.
- Gizmodo can throw a lot of wrenches into this by forcing First Amendment protections into the arguments.
- Using the same protections, I can't imagine that Gizmodo would cough up the name or any other details about the person who profited from the sale of the device. Sell out a source - especially such a major source - and you lose journalistic credibility forever.
As Greg Sandoval, who authored the CNET piece, points out, a lost iPhone prototype may seem like a trivial matter but this represents a major blow to Apple's extreme secrecy, as well as the powerful marketing style of building up anticipation for new products. Just look at how much attention Apple's news conferences get. Now that the cat is out of the bag, Apple will have to really step up its efforts to make sure that its release of a new iPhone isn't a marketing flop.
Steve Jobs just may need to pull a "One More Thing" surprise out of his hat when he announces the iPhone, rumored to be as early as June. Without it, the launch of the device could risks being labeled a "Ho-Hum" event.