Last week, the intrepid Jason Chen of gadget blog Gizmodo wrote a post on the next iPhone which brought the comments system on other blogs in the Gawker network juddering to a halt as eager Apple fans flooded to the site to get inside information on the next version of what some disparaging commenters call the “Jesus Phone.” As someone who is still deciding whether I actually need a smartphone, I was just miffed that one of my favourite sites — Gizmodo sister site Jezebel — wasn’t working properly. Nevertheless, it was a tremendous scoop for Gizmodo, who were well ahead of their competition, first with pictures and details.
On Monday, Jason Chen’s house was raided and police took away his computers and servers. You see, he’d been able to get details on the next iPhone because he had access to a prototype. A prototype that had been left in a bar by a careless Apple employee. It had then been picked up an an enterprising middle man who had realised the value of what he had and had sold it to Gizmodo for $5,000. And apparently this is contrary to California law, where any lost property, not just shiny super-secret tech gadgetry, must be handed in to police or at least have all reasonable steps taken to return it to it’s rightful owner. Failure to do so constitutes theft. Uh oh.
This is where things get interesting. I’m in full agreement with Chen’s supporters when they say that the reaction to a spoiler blog post about Apple’s next product was heavy-handed and out of proportion. Battering someone’s door down and hauling away the means by which they earn their livelihood is pretty extreme, especially when the misplaced prototype had been sent back to Apple. If, as Matt Zimmerman of the Electronic Frontier Foundation (EFF) states, the warrant to seize Chen’s property was also wrongfully applied, then that’s something else to add to the injustice pile.
Where I do part company with Team Chen, however, is his protrayal as a journalist. I’m not saying that Gizmodo (or Chen as an individual) doesn’t have sources, or never carries out any independent investigation. Neither am I saying that blogs are incapable of carrying out any of the same functions as a journalist. Rather, I’m going by what Nick Denton, head of Gawker, actually said about his blog network:
We don’t seek to do good […]. We may inadvertently do good. We may inadvertently commit journalism. That is not the institutional intention. (Emphasis mine)
So if Denton doesn’t consider what his employees do to be journalism, why should anyone else? While Gaby Darbyshire, Gawker’s COO, brings up a number of journalistic protections that exist under Californian statute in her letter to the police in an attempt to get Chen’s possessions returned to him, it’s difficult to see how avowedly non-journalistic websites can claim the privileges afforded to their “old media” counterparts. The law works much slower than technology, and at present blogs are not considered as being on a par with newspapers, magazines and the like.
Also muddying the waters is the fact that by paying for the iPhone prototype and taking it apart, Chen and Gizmodo were effectively handling stolen goods. Now, newspapers and magazines pay for scoops and tips all the time, and in the case of confidential information, can usually hide behind shield or public interest laws. In most cases, they argue that bringing the information to light is more important than any embarrassment the original owners may experience. But blogs seemingly inhabit a legal no-man’s land: growing in importance and reach, but still considered (at least by the legal establishment) to be outside of mainstream media. Another factor to consider is that there are rumours that the reason why the missing iPhone took so long to surface is because it was the subject of a bidding war, with Gizmodo being the ultimate winner.
What cannot be denied is that Chen and Gizmodo took something that didn’t belong to them and fiddled around with it. This is illegal under Californian law. No matter how important the launch of a new product might seem to Apple and iPhone owners, I don’t think there’s a public interest defence to be had here. Leaking of confidential information, yes; interfering with commercially sensitive prototypes, maybe. But making the lost prototype public does not highlight an injustice or a wrongdoing. Instead, it was incrediby good for Gizmodo pageviews and provided a tantalising glimpse of the future for some.
Are blogs news outlets? It is difficult to say. There’s no doubt that blogs are just as capable of breaking stories and setting the news agenda as “old media” publications, but at the same time, many prominent blogs chafe against the constraints of “proper journalism” preferring to forge their own path than to adhere to the same rules and conventions as their print counterparts. If they refuse to be bound by the same rules that govern traditional media, can they still claim the privileges that come with the responsibilities of “proper”journalism?”
Deciding where to draw the line between a one-person blog that happens to break a major story, a collectivist blog that might skirt around free speech rights, and a newspaper with a full complement of staff and fact-checkers is something that will have to be decided in a court of law. Will the Gizmodo case get that far? It’s impossible to say at present. What is obvious is that as blogs become more prominent they will come under increasing pressure to either adhere to journalistic standards, or take their chances in those parts of the internet that are still unregulated and uncensored. In the end, I believe, blogs will have to pick a side: those who want recognition and protection of the law will become increasingly like newspaper websites. Those who do not wish to do so will dance to their own tune.
[Image by Quinn.Anya]