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.