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Chiquita, Gizmodo, and the wages of sin in journalism

I’ve been following the ongoing saga of Gizmodo’s publishing photos of the lost iPhone prototype. The latest is that the San Mateo police served a search warrant on Gizmodo editor Jason Chen, broke into his house, and confiscated his computers. There are two arguments about this, the first is whether Gizmodo is protected by shield laws for journalists, being a blog and all. That’s not a very interesting argument — of course it is. If you want to argue about that, argue with someone else.

The second argument is that Gizmodo is suspected of engaging in criminal activity to obtain the iPhone prototype, thereby rendering the shield laws inapplicable. Eugene Volokh makes that point. The EFF disagrees. That’s the discussion that interests me.

The consequences of reporters using illegal methods to break news reminds me of a dispute between Chiquita (the banana company) and the Cincinnati Enquirer in 1998. On May 3, 1998, the Enquirer published 18 pages of investigative pieces on Chiquita’s business practices. Two months later, the Enquirer renounced the stories on its front page and agreed to pay Chiquita a settlement of more than $10 million. The reporter who wrote the story was fired immediately and the editor responsible was reassigned.

There’s little argument that the stories were accurate, but the reporter had obtained some of the details by accessing Chiquita’s voice mail system without permission. You can read a detailed account of what happened in the American Journalism Review and the paper’s apology is still available on the Cincinnati Enquirer Web site.

In September 1998, the reporter, Michael Gallagher pleaded guilty to two felony charges related to accessing the voice mail system. In 2007, Chiquita paid a $25 million fine for payments it made to paramilitary groups in Colombia. The company has also been recently accused of mistreating its workers in exactly the same ways as were alleged in the original series.

The articles were an important act of public service journalism, exposing a broad pattern of malfeasance by the most powerful company in Cincinnati, but the fact that the reporter cut corners blew the whole thing up. If illegal access to voice mail by a reporter was enough to cost a newspaper $10 million and discredit a thoroughly researched, important investigative series, what’s going to be the end result of Gizmodo purchasing stolen goods to share pictures of a cool new phone with the world?

On one hand, the stakes are lower. Apple’s brand is not damaged by Gizmodo’s reporting on the prototype, so while it may want to discourage people from stealing their property and discourage journalists from buying it, they don’t have any incentive to knock down the story Gizmodo published. On the other, with millions of dollars and its own prestige on the line, the Cincinnati Enquirer was forced to capitulate completely to Chiquita. In the end, I guess Gizmodo has to hope that Apple isn’t as angry as Chiquita was.

10 Comments

  1. Well if it is discovered that Gizmodo hired a thief, that’s one thing. But as of now the story is that Gizmodo was contacted by a 3rd party who had found the phone at a bar, and even returned it when requested.

  2. I’m sure Apple could argue brand damage though, or at least monetary damages, and if it was brought to a jury you never know what the outcome would be. Scenario: By leaking the new look, Apple competitors got a head start on duplicating the look and feel of a “premium product” to introduce cheaper “knock-offs”.

  3. Good points. When the smoke clears in this case though I think it will be Gawker’s lawyer who will take the biggest fall, and not Chen or even Denton.

  4. It’s a small point, but if the San Mateo police had a search warrant, then they were not ‘breaking into his house’.

  5. True. They did forcibly enter though, because he wasn’t home.

  6. Frankly, I think that the question which you don’t want to argue is actually very interesting: are bloggers journalists? I blog. Does that mean that that shield laws apply to me? If not to me, then why to Gizmodo? I think the idea that creating a website turns one into a journalist is an amusing fiction that Gizmodo would like to be true, but I wouldn’t bet my future on the courts upholding it.

    Gizmodo didn’t uncover a betrayal of public trust or malfeasance. They payed a third party for a prototype which wasn’t his to sell, and then widely published the information they obtained. Gizmodo itself is little more than a service which sells the eyeballs of those who buy gadgets to those who have gadgets to sell. I’d also bet that there are significant details about this case which aren’t currently being made public, and which could significantly affect the legal culpability of the parties involved. We shall see what the ultimate fallout is, but if I were Gizmodo, I’d be a teeny bit worried, and if I were Engadget, I’d be glad that I’d dodged the maelstrom that Gizmodo succumbed to.

  7. See, you say you want to argue about whether bloggers are journalists but you wind up arguing about whether Gizmodo broke the law. Not all bloggers are journalists, of course — I wouldn’t consider myself a journalist at all — but anyone committing acts of journalism is a journalist from a free speech standpoint, regardless of how they publish their work.

  8. Jacob Davies

    May 3, 2010 at 9:56 pm

    Haven’t figured out how I feel about this one. On the one hand, they knew what they were doing was buying illicit property that properly belonged to Apple, that photographing it and taking it apart would have serious consequences for Apple, that it ought to be covered by trade secret law and that they had no legitimate claim to it.

    On the other hand, so what? Apple had a prototype and put it out in the wild and lost it and some guys took photos of it. Oh well. They don’t appear to have stolen it, they didn’t commission a theft, they returned it to Apple in the end, so… so what? I’m all for protection of trade secrets against industrial espionage, but not necessarily for protection of trade secrets against one of your employees losing them in a bar, especially when those trade secrets are of sharply limited lifetime since the new phone comes out in a few months.

  9. I agree that Gizmodo did little or no harm to Apple, but I don’t think it’s good to establish the precedent that selling things other people lost to interested parties from a social standpoint. If Beyonce loses her cell phone, people shouldn’t download the pictures and sell them to tabloids, even if they’re not embarrassing.

  10. Jacob Davies

    May 4, 2010 at 1:28 am

    They shouldn’t, but that isn’t the same as saying that, having done so, they shouldn’t receive 1st Amendment protection. There are a lot of things people shouldn’t do that nonetheless ought to be protected. I regret when people do them, but think the consequences of criminal prosecution would be worse. I’m just not 100% sure if this case is one of them.

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