Gizmodo proved that it will indeed do “anything for a story” by its involvement in the “iPhone 4G” controversy.
Two weeks ago, I got out of my car in the parking lot of a business supplies store and looked down: there was a cell phone lying on the pavement.
It was not, as it happens, the secret “iPhone 4G.” It was a very un-chic, well-used, stubby Motorola model. My first reaction was “now what?” There was no name on it, and I didn’t know how, or whether, I should try to fiddle with it to bring up a contacts list or email or something that might ID the owner. In the end, I handed it over to a clerk at the store’s customer service desk. It’s probably still there.
This week, the Gizmodo tech blog posted photos and details of what many agree seems to be a genuine prototype of the next iPhone, dubbed iPhone 4G, expected to be announced in the coming months.
At first, Gizmodo was sparing on the details of how it acquired the phone: it created the clear impression that someone simply had lost it, someone else simply found it, and then passed it along to the appreciative, enthusiastic, boys-will-be-boys geeks at Gizmodo and its parent Gawker Media. The idea was “someone just found this and let us take a look at it! This is aweseome.”
Then, yesterday, the blog and Gawker Media chief Nick Denton released more details about how Gizmodo actually got the phone. It had been lost and found almost four weeks ago, March 18, to be exact, at a beer hall in Redwood City, California. In circumstances not too different from my parking lot experience (except for the beer): someone looked down and said “is that your iPhone?” and another someone picked it up and said “nope.”
But now we know that the person who picked up the phone not only kept it but sifted through the apps on the phone, either right there at the bar or the next morning at home (Gizmodo isn’t specific on this). He found the iPhone Facebook app, clicked on it, and found the Facebook page of one Gray Powell, a software engineer with Apple. UPDATE: A commenter below notes that this link is to a "fan page," with nothing to indicate it was created by Powell. According to that comment, Powell's actual Facebook page, mentioned in the Gizmodo article "How Apple lost the next iPhone", along with his Twitter account, has been locked.
And the phone’s new “owner” apparently never tried to contact Powell directly, despite the fact he had specific information about Powell from Powell’s Facebook account. By then, according to Gizmodo, the phone finder had realized it wasn’t a standard iPhone, but something new, quite possibly a prototype of the next, as-yet-unannounced iPhone model, dubbed iPhone 4G.
Here’s how Gizmodo explains the finder’s thinking, relying obviously on the finder himself and their own empathic reporting:
“He reached for a phone and called a lot of Apple numbers and tried to find someone who was at least willing to transfer his call to the right person, but no luck. No one took him seriously and all he got for his troubles was a ticket number.
“He thought that eventually the ticket would move up high enough and that he would receive a call back, but his phone never rang." Up to this point we're dealing with "facts" -- facts asserted by the party in question -- the finder. Even here, the Gizmodo reporters and editors are notably uncurious. Then, Gizmodo shifts into pure advocacy: "What should he be expected to do then? Walk into an Apple store and give the shiny, new device to a 20-year-old who might just end up selling it on eBay?”
Heaven forbid. Much, much better to sell it to Gizmodo.
The obvious question, which never seems to have occurred to Gizmodo to ask, is: why didn’t the finder call or email Powell directly, or post a message on Powell’s Facebook page? Reaching Powell at Apple means calling the main Apple switchboard, and asking for an employee named “Gray Powell.” According to Gizmodo's post on the "backstory" of the iPhone 4G, the Gizmodo reporters were able to both email and then call Powell.
I am not a lawyer. But at the very least, the original “Hey, look what I found” situation changes significantly at this point. The finder had seen the Facebook app, knew who the Facebook user was, and at the very least should have concluded that Powell, if not the owner himself, might know who was. But the finder didn’t act on that information, and pretty clearly tried to obfuscate that fact, aided and abetted by the reporters at Gizmodo.
At some point after that, the phone finder contacted Gizmodo. Yesterday, Gawker’s Denton proudly crowed by tweet that Gizmodo had paid the finder $5,000 for “exclusive” possession of the mystery device. Do you think that, perhaps, that’s why the finder didn’t really try to contact Powell?
Like the finder, the Gizmodo reporters apparently used the phone to find out a great deal of information about Powell: the blog posted an image of Powell’s Facebook page, and provided a link to his collection of photos on Flickr. Denton announced yesterday afternoon by tweet that they had identified the likely owner as an Apple employee and were about to call him.
The posted transcript of the short conversation between a Gizmodo reporter got me wondering if it was recorded, and if Gizmodo bothered to inform Powell of that fact. In the transcript, the reporter tells Powell, “"We have a device, and we think that maybe you misplaced it at a bar, and we would like to give it back.”
No mention of the phone’s finder ignoring evidence that Powell was the owner, failing to even try to contact him, and instead shopping the device in a kind of private eBay auction.
Today, Gizmodo editorial director Brian Lam posted the letter that is Apple’s formal request, signed by Bruce Sewell, senior vice president and general counsel, that the device be returned. In his reply to “Bruce,” Lam welcomes the request: “Happy to have you pick this thing up. Was burning a hole in our pockets.”
Lam continues: “Just so you know, we didn't know this was stolen when we bought it. Now that we definitely know it's not some knockoff, and it really is Apple's, I'm happy to see it returned to its rightful owner.” In the online posting, Lam added a parenthesis after “stolen” – “[as they might have claimed. meaning, real and truly from Apple. It was found, and to be of unproven origin].”
Lam’s argument amounts to saying “now that you, Apple, are asking us to return this phone, we now for the first time realize this is your property and of course we’ll give it back.”
He includes the Gizmodo legal team’s opinion: “Our legal team told us that in California the law states, ‘If it is lost, the owner has three years to reclaim or title passes to the owner of the premises where the property was found. The person who found it had the duty to report it.’ Which, actually, the guys who found it tried to do, but were pretty much ignored by Apple.”
Lam might want to get another legal team to help him understand what the first legal team is actually saying. He apparently thinks that 1) the California law lets Gizmodo hang onto the device for three years, unless the owner through unstinting investigation tracks it down to the Gizmodo office and claims it; 2) that the phone’s finder actually did discharge his “duty to report it”; 3) that Gizmodo then had every right to pay the finder for someone else’s property, take possession of it on the grounds that they didn’t know where it came from, and then disassemble it; and 4) that the whole thing is really Apple’s fault, anyway, because it “pretty much ignored” (one admires the legal precision of that phrase) all those calls that the finder claims to have made to the company.
Gizmodo isn’t even the “premises where the property was found.” That would be the beer hall in Redwood City. Based on what Gizmodo has posted so far, “we didn’t know it was stolen” actually means “we made certain that we couldn’t know.”
Other bloggers have noted that that Lam’s legal team opinion addresses only the device as stolen property, not as corporate trade secrets.
Charles Arthur, technology editor for “The Guardian” elaborates on why he thinks the legal situation is far from as cut-and-dried as Gizmodo makes it out to be. He quotes from California statutes on the duties of the finder of property. He quotes from a California legal blog on stolen property: “For property to qualify as "stolen", the person who took the property must have intended permanently to deprive the owner of that property. Under penal Code 496, this intent will pass onto you if you knowingly and subsequently receive that property. This means that even if you weren't aware at the time that you received the property that it was stolen (but later learned or suspected that fact), you must immediately contact the owner of the property or the police to avoid prosecution.”
Arthur suggests that the finder’s decision to sell the device indicates his intent to “permanently deprive the owner of that property.” If so, he argues, then the finder can be charged with theft and Gizmodo (or a specific Gizmodo reporter or editor) with receiving stolen property.
In another tweet Monday night, Gawker’s Nick Denton (@nicknotnet) wrote: “Yes, we already disclosed that we paid $5,000. And, yes, we'll do anything for a story. Our only obligation is to our readers.”
I’m always intrigued by how “new media” when pressed always reach with one hand for the oldest of the old media’s clichés, and with the other hand for the checkbook. We’ll do anything for a story, except ask obvious, let alone tough, questions.
In a post today, Denton says “Yes, I feel guilt when we sit on a great story because we're afraid of upsetting someone or losing access.”
There’s no doubt it was a great story. It’s been reported that Monday’s original post, triggered an avalanche of Gizmodo page views: over 10 million, which is an impressive result for a $5,000 investment. But Denton is posturing.
The first obligation for new as for old media is the truth. Denton, and his reporters, from the outset accepted only one account, that of the “finder,” and showed toward him the same kind of credulity and toward their readers the same kind of self-serving cant for which they lambast and lampoon the old media.