Image from Gizmodo

I’m not a lawyer. The opinions in this editorial are based on research and reading the opinions of other who do have law degrees. Any lawyers who think my reasoning here is incorrect, please let me know.

Last week Jason Chen, the editor of the Gawker blog Gizmodo, got his hands on an iPhone 4. This is the next generation of iPhone, set to be announced by Apple this summer; getting the phone proved a major coup for Gizmodo, who made it on CNN and got millions of hits on the story.

But there were troubling aspects to it all. Chen didn’t just get the scoop on the iPhone 4, or pictures sent from some source – he got an actual model. And he paid money for it. And he got it from someone who wasn’t the rightful owner. And he took it apart. Checkbook journalism is troubling – for many the act of paying a source for information taints that source – but more troubling is buying potentially stolen property.

Last night the police raided Jason Chen’s home and confiscated computers and gadgets. They didn’t arrest Chen. For many this was a terrible development; some saw it as an illegal attack on journalism, while others worried what this could mean for their own branch of scoop-getting. Could a studio suddenly sic the cops on a blogger who divulged story details of an anticipated film in development?

It’s interesting that the movie news world already had their own almost-Jason Chen moment a couple of years ago. Someone broke into the production offices of Indiana Jones and the Kingdom of the Crystal Skull and made off with a whole bunch of images and other materials, and tried to sell them to movie site webmasters. Surprisingly no one bit, and the guy got busted.

I think that’s just about the only real situation in the movie news world that parallels Chen’s. 90% of movie scoops are variations on ‘I heard from a guy.’ Let’s imagine that we have suddenly woken up in a crazy version of the world and I ran a big casting scoop on a Universal film and that Universal, rather than just yelling at me and uninviting me to their next event, got all legal on me because they believe my source was breaking an NDA. They can’t make me give up my source, and it would be a major deal to drag me into a court and convince a judge that I should be forced to give up my source. At that point I’m entering into Valerie Plame territory, and I really think we can all agree it’s going to be unlikely that a judge is going to jail me on contempt because I won’t give up the guy who told  me that Chris Pine is now playing Character X.

There are people who get their hands on scripts and review them, and that’s a legal issue of another feather, but everything that I understand about it makes me believe that it’s not a felony and that Paramount simply isn’t going to be able to get the cops to seize a blogger’s hard drive because a junior agent at WMA sent him a pdf of a script (especially in a corporate culture where script sharing is completely and totally the norm). I think Fox would like to scare the shit out of people, but the way they do that is with good old cease & desist orders. I’m very familiar with those, having received a few in my time, and the reality is that 99% of C&Ds delivered to movie sites wouldn’t hold up in court, but who’s going to spend the money testing that out?

But whatever – this has all been wanking, since none of this is in any way related to the situation that has gotten Jason Chen into deep water. Gizmodo does the gadget blog versions of those things every single day – running rumors about the functions of the iPad, running spy photos of an iPad prototype – and the crossed line wasn’t journalism. It was potentially a felony.

See, Chen can write up things from insiders all day long but he simply can’t buy stolen goods. Being a journalist doesn’t keep you from being bound by the law; it’s just as illegal for a journalist to receive stolen property as it is for a regular person, and for the record, the California state penal code seems stacked against Chen here*, and the fact that the cops showed up at his door indicates that they believe the iPhone came into his possession through illegal means. Whether or not Chen is guilty of that will be up to a court of law in the long run, but in the meantime the cops didn’t come to Chen’s house because he ran an iPhone 4 story but because he bought an item that the police believe was not legal for him to buy.

Some folks have raised the specter of Daniel Ellsberg when talking about Jason Chen, and while it’s laughable to compare a guy who tried to expose high level government evils with a dude who writes about phones, it’s seemingly apt. Journalism is journalism, and once the government starts saying that one kind of journalism doesn’t count, all other kinds of journalism are in danger. Journalism is incredibly important for a healthy democracy because it is the main way to keep the government in check and the electorate truly informed; any laws that stop journalists from doing what they do are bad laws.

But again, Chen’s probably not being targeted for his journalism but rather for his illegal transaction. Ellsberg wasn’t a journalist, and by leaking classified documents to the New York Times he put himself in jeopardy of federal prosecution, but there’s a big difference between the Pentagon Papers and the iPhone Incident – one was in the public good. There’s a reason why there are laws that protect whistleblowers; sometimes you must technically break the law – violate an NDA or reveal state secrets – for the greater good. It’s hard to argue that Jason Chen is a whistleblower. What injustice or wrong is he exposing?

All of my opinions are based on the assumption that California authorities are investigating Chen not for his reporting but for his felony – buying stolen goods. Shield laws protect journalists from giving up their sources, not from participating in crimes. If the Indiana Jones 4 material had been purchased and posted online, the person who ran that would have been just as guilty of committing a crime and thus just as open to prosecution.

To me that’s the important thing to remember; being a journalist isn’t a license to do as you please. It’s important that journalists are allowed to do their jobs without government interference and that they should be able to protect their sources, who are vital to the work they do. But the police aren’t trying to nail Jason Chen’s source – they’re trying to nail Jason Chen for buying an iPhone he knew wasn’t coming from the legitimate owner. There’s a lot of smoke and mirrors going on here, but I really do believe this isn’t a journalism issue, or if it is it’s a journalism teaching experience – being a journalist simply doesn’t give you the license to break the law.

UPDATE: Just to get this out of the way: bloggers are journalists. You don’t have to agree, you don’t have to like it, you don’t have to read them, but getting the government involved in defining journalism leaves the door open for the government to define those they don’t like as being ‘not journalists.’

* Check out California Penal Code 485. The question will be whether the seller or Chen made ‘reasonable and just efforts’ to return the phone. Since the seller found the Facebook page of the owner, and since the seller found the phone at a bar – common practice would be to turn in any found items to the owners of the establishment where it was found, and the iPhone’s owner did make repeated calls to the bar to see if anyone turned the phone in – things look a touch grim for Gizmodo.