Thursday, April 22, 2010

iPhone, Gizmodo: Gruber Naive About Law

Gruber proves surprisingly naive about law. He says Gizmodo fails to satisfy California law's requirement that a good-faith effort be made at returning found property, because they called Apple on the phone but didn't think to put the new iPhone in a box and mail it to Apple's corporate address. That's absurd. The law cannot require resourcefulness, originality, and intelligence; a good-faith effort is a good-faith effort. If I call you on the phone and tell you I have something which belongs to you, ask you if you want it back, and you shrug me off, I've made a good-faith effort, at least as far as the law is concerned.

There's a difference between the law and reality. In reality. the finder of the phone seems to have done exactly what a smart lawyer would have advised, if somebody had gone to this smart lawyer and said, "I have a phone, I want to keep it, but I don't want to go to jail." If you hate Gizmodo, you're sure that's what happened. But you can't prove that happened, and that's kind of the point.

Speaking of being sure because you hate Gizmodo, the only thing "unforgivable" that has happened at any point in this series of events is a sentence fragment in this paragraph:

In my book, anyone who did this with a phone left on a bar stool would be just as likely to, say, take it out of someone’s jacket pocket if they noticed its unusual nature while the engineer was using it at the bar — which we know the engineer did, given that he updated his Facebook page that evening with a comment regarding the quality of the beer he was drinking. There is no reason to take anything thieves claim at face value, particularly when it’s all been filtered through Gizmodo, which has a decided interest in painting a picture where they didn’t realize they were purchasing stolen property.

I don't care about this and I don't understand why anybody does, but I care about good logic, and Gruber's lapse here is unforgivable. The law never takes anything anyone says at face value, and it is absolutely unforgivable in my eyes to say "you have to conclude these people are thieves, because they are thieves." You cannot have an accusation in your argument; it has to come before or after. Seriously, if Gruber was my kid, I'd disown him.

It's also absurd to criticize Gizmodo for having an interest in defending themselves legally in the middle of a blog post which examines the civil and criminal laws that Apple can accuse them of violating. If you're discussing how to attack somebody, and then they talk about defending themselves, you can't say that their desire to defend themselves is suspicious, because your obvious intent to attack provides ample non-suspicious cause.

More importantly, Gruber falls short of the high standards I had hoped he was gunning for when he discusses both the civil and criminal laws regarding theft, and fails to notice that Gizmodo is absolutely OK on the criminal law and only vulnerable to attack on the civil law. For all his puerile sneering about coincidence, he fails to notice the only relevant "coincidence." That's why I think Gizmodo had a smart lawyer and they knew what they were doing.

And that's also why I think that what they did was OK. If it's legal, then the only thing to do is change the law, and I don't think the law should change. Laws which enforce corporate secrecy at the expense of journalism are a terrible threat to freedom and indeed public safety as well. Corporations have a right to privacy just like real people, of course, but if you get drunk and you fuck up, that's nobody's fault but yours.

Update: Gruber's subsequent posts have been way better; I think he just got emotional. Meanwhile, the New York Times spoke to a legal expert who confirms what I said:

A prosecution of the guy who found the phone is going to be really tough because he apparently did make efforts to return the phone. Theft is failing to try to return it. It’s going to be difficult to decide how much effort he made and whether that was sufficient.

("Difficult" is good for the defendant in a criminal case, because the state's burden of proof must go beyond reasonable doubt.)