It was the shot heard round the blogosphere. After nearly a week of speculation on whether Gizmodo had purchased a “stolen” next-gen iPhone, one it then flaunted to the tune of millions of pageviews, police raided Gizmodo editor Jason Chen’s home on Friday, confiscating four computers, two servers, and other items as part of an investigation presumably into whether the iPhone had been obtained illegally. Unsurprisingly, the Gizmodo post announcing this search has already received more than a half million views, not just because this involves a highly-publicized Apple story but also because this may be one of the most high-profile cases in which the law must determine whether a blogger should legally be considered a journalist. As I found after conducting several interviews, editors from other major online news outlets are watching the case with extreme interest.
According to a letter written by Gawker Media’s Chief Operating Officer Gaby Darbyshire, Gawker believes that Chen should be protected by both state and national journalism shield laws. “Jason is a journalist who works full time for our company,” Darbyshire wrote. “Abundant examples of his work are available on the web. He works from home, which is his de facto newsroom, and all equipment used by him there is used for the purposes of his employment with us.”
Immediately upon reading this I began contacting editors from well-known online news networks, many of whom employ bloggers. It didn’t surprise me at all that most of them agreed that Chen should be legally considered a journalist, but some were more cautious when opining on whether the journalism shield laws should apply in this case. After all, Gizmodo didn’t just interview an anonymous source, it purchased an iPhone that many considered to be stolen, making a few of my sources wonder if it had crossed a delicate line between journalism and theft.
John Biggs, editor-in-chief of the TechCrunch-owned CrunchGear, was one of those who took this measured approach. He suggested in my phone interview with him that it may have been better for Gizmodo to pay for temporary “access” to the iPhone rather purchasing it outright. “That definitely sounds like the way it should have been done,” Biggs said. “You can’t second guess everything but it’s basically similar to the Pentagon Papers in one respect in the sense that you have a document that was given to you, not purchased obviously, but you had access to a document, and that would obviously be more accepted than outright saying, ‘here we gave this person $5,000 and purchased this phone … purchased this stolen item that wasn’t anyone’s to begin with.”
The CrunchGear editor said that he has been approached with gadget prototypes in the past, a situation that obviously presents a tricky ethical dilemma. In a TechCrunchpost, Briggs’ boss, Michael Arrington, compared the iPhone leak to his own experience dealing with hacked Twitter documents, noting that he hadn’t solicited the information or paid for it. “Where Gizmodo made a mistake in my opinion is when they purchased the phone,” Arrington wrote. “This is something we would never do. Weâ€™ve been asked if we wanted to purchase information in the past that would have made for some great stories and we have always declined.”
Ed Morrissey, an editor for one of the most popular conservative blogs, Hot Air, said that even if the iPhone was considered stolen in some vague legal sense, it shouldn’t have resulted in a Gizmodo editor’s home being raided. “It seems to me that seizing six computers because of the supposed theft, the alleged theft, of a single iPhone is somewhat overkill,” he told me. “Even apart from the shield law.”
But should Chen be considered a journalist? Yes, Morrissey said, noting that Gawker blogs regularly break stories and conduct original reporting. But though he argued that journalism shield laws should apply to most leaks, he also said there should be some exceptions when it comes to national security. “Certainly there has to be parameters on everybody, not just on bloggers, but on mainstream news journalists about what they can and can’t use that shield for, but it seems to me just based on what I’ve seen that this is a very strange overreaction on the part of California.”
I asked Morrissey if this could determine whether anonymous sources would continue to feel comfortable leaking stories to bloggers if it’s determined that the online journalists aren’t shielded by such laws. He agreed with this notion, recounting a story that he broke that involved a scandal in Canada. “Fortunately I wasn’t in Canadian jurisdiction at the time, but part of the reason that person came to me is because that person was pretty sure I’d protect his or her identity and I was out of the reach of the Canadian authorities,” he explained.
Mediaite editor Colby Hall opined in a phone interview that Chen should be protected. “I believe currently that they should be protected by journalism laws,” he said. “The larger question is what is journalism, and the definition of journalism has evolved … Gawker Media notoriously flaunts accepted practices of traditional journalism to great effect. I imagine at the end of the day not a lot will come of this.” Joan Walsh, editor-in-chief of Salon.com, expressed similar sentiments. “The fact that Gizmodo paid for the phone muddies the water a little, but would we really say that reporters/editors for TMZ and the National Enquirer — which also pay for information — aren’t protected?” she wrote in an email. “Gizmodo isn’t an Apple competitor; it paid $ for a big scoop in its realm of coverage. Salon doesn’t pay sources or pay for information or gadgets — but I have a hard time with the idea that Chen isn’t a journalist.” She later added in a follow-up email: ” Also, to storm Chen’s house, while he’s not there, rather than issue a subpoena? WTF? He didn’t have Osama bin Laden in there…”
But perhaps the most surprising response came from Tony Pierce, the blog editor for the LA Times. Pierce first gained his blogging street cred from his incredibly personalBusblog before landing a gig as editor for LAist. His success there led to his coveted spot at the Times. In a brief G-Chat message to me, he pointed to an interview Gawker founder Nick Denton gave to the Washington Post in which he said that, “We may inadvertently do good. We may inadvertently commit journalism. That is not the institutional intention.”
“So unfortunately I think Gizmodo doesn’t have much of a leg to stand on if their own boss says they don’t really do journalism there.”