I Come to Bury Gizmodo…

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I come to bury Caesar, not to praise him.

-William Shakespeare,
voicing Mark Antony

ZOMG! What an uproar! Readers of The Mac Observer and other Apple fans have been almost universal in their condemnation of Gizmodo for having paid cash money for a prototype iPhone 4G that turned up in a San Jose bar last week, and even more disturbingly, many people seem to be salivating at the idea that someone could face criminal charges over the incident.

I have been a little dismayed at this former and troubled by the latter. For one thing, as long-time TMO curmudgeon Bosco (A.K.A Brad Hutchings) pointed out, what Gizmodo and the prototype’s finder are guilty of most in the eyes of those seemingly most hungry for blood is spilling Apple’s secrets (and in this case the secret had already been spilled when the finder sent photos of the device to Engadget, which promptly posted them).

Now, I love Apple’s products, and I absolutely believe no other company on the planet has the ability to make computing devices as well as Apple can; but in the end, Apple is still just a corporation. In the grand scheme of things, the loss of one prototype device and publication of information pertaining to that prototype is just not the end of the world, and I think it would behoove all of us to remember that.

There’s another very salient aspect to this situation that I think is even more important, however, and this strikes to the heart of why I can make a living writing about Apple and why you, gentle reader, come to TMO, Gizmodo, Engadget, and the host of other Mac-related blogs on the Internet to read about the company.

Ready? Here it comes: Apple works very hard to keep its product plans secret. This creates heightened interest in the company and results in millions, if not tens of millions of dollars worth of free press for the company in virtually every new product cycle.

The one begets the other, and if you take away the secrecy, much of the interest and speculation would dissipate.

I know, that’s rather obvious, but it’s the other half of the coin that many of us forget: Apple’s secrecy also generates interest, motive, and reward for other people to uncover those secrets.

I’m going to repeat that, with a few extra words and some italics thrown in for good measure. The same secrecy that leads to free press and Apple media events that are attended by sometimes hundreds of journalists from around the world also generates interest, motive, and reward for other people to uncover those secrets.

This is part and parcel of the cycle, and Apple simply can’t have the free press coverage without also getting the rumormongers who try to spoil the company’s well-laid plans.

Indeed, I’ve long felt that in many product cycles the rumormongers’ efforts result in even more free mainstream press. Today, the mainstream press often sources content directly from the Mac Web, and many major newspapers and media outlets follow many Mac sites that once upon a time were far too niche for them to notice.

This was part of why I was so tense about Apple trying to use the legal system to ferret out Think Secret’s sources several years ago, an effort that thankfully went nowhere. Why risk damaging press freedoms when what Think Secret did was merely an inevitable side effect of Apple’s business model (use secrecy to generate free press and public anticipation)?

There are no such thorny and broad issues at stake with the Gizmodo debacle, however. While it’s vaguely possible that some legal statute pertaining to the press would offer Gizmodo some amount of protection in the event that Apple or a District Attorney actually press charges, I don’t think any press freedoms will be in jeopardy if there’s a conviction.

And please note that it’s not that I really support what Gizmodo did. Paying for property you know belongs to someone else (in this case, a corporation) is kind of a bottom-feeder thing to do (I respect that the site promptly returned it to Apple when asked), but I watched Gizmodo’s video, and I’m willing to bet that almost all of those so ready to burn the magazine at the stake did, too.

There’s also the questionable topic of paying for a story. David Carr wrote an excellent piece for The New York Times examining the issue, including the slippery slope that such practices could lead to. For its part, Gizmodo head honcho Nick Denton (the CEO of parent company Gawker Media) defended the concept by noting that his company was up front and open about it, and didn’t try to hide anything.

Still, paying for leaked information or lost prototypes is something I personally consider to be less-than-savory, but I accept the reality that it’s part of the marketplace and the inevitability that such practices will occur, as noted above.

Even here, our own hands aren’t squeaky clean. We’ve published leaked photos of Apple-related prototypes, though we’ve never paid for them, and we’ve been the source of leaked stories. Again, this is all a part of Apple’s carefully cultivated ecosystem.

I should also note, that it’s not unique to Apple or the computer market. As TMO president Dave Hamilton noted in our staff meeting this morning, car magazines and trade journals have for decades published spy photos of prototype cars, and I’ll add that long before MacWeek was dumpster diving in Cupertino, car magazines were dumpster diving in Detroit.

Show me an industry with secrecy, and I’ll show you a trade press trying to uncover those secrets.

Which brings me to something I should have already said: This column is not intended to bitch about Apple pressing charges (should the company even do so). Instead, I’m shaking my finger at all those so keen to condemn Gizmodo for its actions after the fact.

We’re all interested in what Apple does, and that’s because Apple works so hard to keep what it’s going to do a secret. It’s an infinite loop.

[Update: As I was finishing this piece, TMO reported that the police had seized the computer of the Gizmodo employee that handled the iPhone prototype story.]

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Lee Dronick

I come to bury Caesar, not to praise him.
The evil that men do lives after them;
The good is oft interred with their bones;
So let it be with Gizmodo”


Now, most noble Gizmodo,
The gods to-day stand friendly, that we may,
Lovers in peace, lead on our days to age!
But since the affairs of men rest still incertain,
Let’s reason with the worst that may befall.
If we do lose this battle, then is this
The very last time we shall publish together:
What are you then determined to do?

Well enough quoting Shakespeare’s Julius Caesar lest I end up falling on my sword at Philippi. I am mixed on this. One hand I see the duties of the Fourth Estate, though this is hardly the Watergate. On the other hand I can see Apple’s, or any business’, position and a lot of money is at stake if a prototype should fall into wrong hands.



Don’t get me wrong, I love watching Apple-related rumors like the next guy but…

a VERY important part of this picture that you didn’t cover at all or well enough is the potential MILLIONS of dollars Apple, its business partners and investors are at risk of losing because of Gizmodo’s (and others’) wreckless actions. 

If a significant number of customers, partners shift their buying decisions in an unprofitable fashion, this could become a very tangible hurt that might lead to innocent workers losing their jobs if the bottom(s?) line of several companies are damaged as a result.

That’s not bitchin’ but a very sober possibility that wouldn’t be fun.


The trouble is that there is not a line in the sand. A point where a reporters actions change from legal and ethical to illegal and unethical. At one end you have no free press, at the other end you have reporters coming into your house to snap pictures and look at your bank book. I don’t want to live in either a fascist state or a paparazzi state. The happy medium lies somewhere in between.

Paying for stories happens. It’s unsavoury but it happens. Snapping pictures of a secret device happens. We all want to see that latest car/gadget/or whatever now and not wait for the unveiling. Frankly even in buying the iPod was on the ragged edge but if they had handled it differently it would have been OK. IMO where Gizmodo crossed this line was with two actions.

First they disassembled the iPhone and put detailed pictures of the internals on the web. For me that’s not acceptable. It’s the difference of spy photos of the next generation Corvette on the test track and breaking in and disassembling it, getting all the specs, and sending them to Chevrolet’s competitors. One is journalism, the other is industrial espionage. The US has enough trouble with clone makers creating rip offs of the products designed on this side of the water without giving them a several month head start. With Gizmodo’s actions it’s even possible that the clone of this gen iPhone will hit the streets before the real one. Whether that involves any illegal activity, time will tell.

The second thing that crossed the line was not the buying arguably ‘stolen’ property. It was being a jerk about giving it back to Apple. If they had bought the iPhone, took a couple of shots of it and then called up Apple and said “We came in possession of this, and figure you want it back”. I would have been fine with that. Heck if they are worried about security then drive over and hand it over to the engineer who lost it. No, where they went wrong was in demanding the letter and spinning that into another ‘Apple the bully’ story to boost hits and revenue. One is responsible journalism. The other is IMO trafficking and profiting from stolen goods. Indeed it could be seen as perilously close to extortion. (We have something of yours and won’t give it back until you give us something we can make money off of and we won’t tell you what we will do with the item if you don’t give us what we want.) Whether they actually crossed that line, time will tell.

Interestingly enough we’re not talking about the clearly illegal actions of the guy who found the iPhone. I doubt there’s anyone that thinks what he did was right. It’s very possible that the police are trying to find the identity of that guy. Gizmodo could end up not being charged with anything as the police go after the actual thief.

Neurotic Nomad

@gruber writes: Journalist shield laws are about journalists being able to protect sources who may have committed crimes. They?re not a license for journalists to commit crimes themselves. Gawker is making an argument that is beside the point. They?re arguing, ?Hey, bloggers are journalists.? The state of California is arguing ?Hey, you committed a felony.?


They?re arguing, ?Hey, bloggers are journalists.? The state of California is arguing ?Hey, you committed a felony.?

That’s where it gets dicy. If California uses what they find on the computer to identify the thief then a Shield Law might apply and get that evidence thrown out.


Tech blogs (TMO included) in the main produce gossip stories that are of interest to the public. Nothing that gizmodo did was in the public interest, if they broke the law they should face the consequences.

Dr. Fyzziks

There’s a difference between publishing spy photos of a car/object/device, and *buying* a device from someone (who admittedly didn’t own it themselves) for $5000.

The first case is acceptable journalism. The latter is a crime. Gizmodo/Gawker apparently doesn’t know the difference between the two.


Bryan, I believe your opinion is incorrect. Our desire for juicy rumors, and Gizmodo’s (or TMO’s) desire to provide them, absolves no one of the responsibility to follow the law.

You also miss an important point: that we crave our rumors does not mean that we want the surprise spoiled.


I’d like to comment on another aspect of the secrecy issue, one related to Macs and Mac OS rather than the iPhone side of things.

I understand full well why Apple applies great secrecy to its products and is very firm about unauthorized disclosures. While this is understandable (mostly) with hardware, it has been an incredible pain for software. I’ve attended more than a dozen WWDCs and keep getting the same “no comment” line even about general direction, rather than specific detail.

Now it’s clear that *some* Apple employees can make statements about products and future directions and all that. Steve does, and I guess that Phil Schiller and Tim Cook are on the “approved” list. But there’s no way for Apple employees below that level to be able to respond to “futures” questions. Let’s say, for example, that Apple announces to developers at WWDC (which is under NDA except for the keynote) that it will be including WhizXX with the next Big Cat. So a developer at the Q&A asks if that will also support the ZapYY capability. If ZapYY is not on the slides or hasn’t been cleared for discussion, the response is always that “we can’t discuss it”.

Right then and there that’s probably the correct decision. The problem is that is as far as it goes. There is no way for Apple employees in a Q&A session to get that question answered - and there should be. Even if it’s later (after WWDC for example), a good answer would be good. Sometime it will still be “we can’t comment”. But other times someone with approval authority can determine that this is is Apple’s interest and provide an appropriate response - and that’s what I’m asking for.

Apple - please provide a focal point for these questions. To keep them focussed and reasonable in number, I suggest that they should be handled through Developer Relations and each one should cost a “developer incident” (a “no comment” response would not be charged). Apple employees could create them or suggest that the interested questioner submit them, and provide necessary context for the question.

This reduce Apple’s secrecy a bit but would be under its own control and would be to its benefit. After all, the secrecy available these days is limited in various ways already. It’s fairly obvious that iPhones are on about a yearly update cycle, although the exact details are (typically) very secret. So telling analysts in January that there will be a new iPhone around mid-year is not news, although the actual date is unknown. Same is true for many of the hardware updates, as these are driven by the calendar (hardware targeted at schools will be released about April) or by new stuff from Intel etc (to some extent).

Apple’s secrecy is a substantial asset but it needs to realize that the secrecy needs to be used more judiciously. Secrecy for secrecy’s sake is pointless. Apple knows this and uses “controlled releases” to its advantage. It should also realize that some additional releases would be good too.


So, let me get this right.  If Apple weren’t so secretive, then person X wouldn’t have lifted the iPhone, and Gizmodo wouldn’t have paid thousands for it.

And if some people weren’t rich, they wouldn’t get robbed.

And if some girls weren’t pretty, they wouldn’t get raped.



I did not agree with Apple’s going after ThinkSecret.  But I don’t agree either that Gizmodo should not be sanctioned. 

They did not pay for ‘news’, whatever that means.  They paid for a device that was illegally obtained.  Now they quibble that they didn’t know if it was the genuine article when they bought it.  Hogwash!  They could have said they’ll inspect it prior to handing over the cash but if it looks to be the real thing then the sale is off because obviously the seller doesn’t own it.  But of course the thing is worth 5 Gs only if it was genuine.

Anyone who considers himself an ethical journalist should criticize rather than defend Gizmodo.  What they did is a blot on the profession.  Which, incidentally, they have declared repeatedly is not what they do.


And if some girls weren?t pretty….

Ok let me step back from my geek persona and put on my scowling old guy persona for a minute.

I’m not really comfortable with the use of the rape analogy in the context of stealing a phone. I suspect that some women, and men, that may be visiting may also feel a bit uncomfortable as well, they just haven’t said anything. I see what you’re saying, and the analogy has been used a number of times in various articles about this topic both on TMO and other sites. It just seems rather over the top.

What’s that rule about online debate where as soon as someone uses the word Nazi all rational debate stops. For me at least rape is another one of those words that in the context of a tech debate seems like too much. At the very least it’s drifting into hyperbole. I’m not necessarily disagreeing with the thrust of your arguments. In many cases I think you’re making valid points. It’s just that words have context in addition to meanings and rape has such a strong context that it seems out of place in a discussion about a stolen phone. I have a friend that was sexually assaulted and, seriously, nothing Gizmodo has done is even close to what happened to her.

Sorry for the interruption. Carry on, this is an interesting discussion.


The story about the phone is fine. The problem I think most readers have is about the way Gizmodo obtained the phone. Paying $5000.00 for what they knew was stolen property. The person taking the phone should have turned it into Apple or to the bars management in case the owner returned for it. Which he did to his dismay and it was gone!
Gizmodo knew it wasn’t there property, and knew that the person they bought it from took it from a bar where it was left. With full knowledge that it wasn’t his or hers to take.
That’s where most readers I believe find Gizmodo’s actions to be dead WRONG!
If I found a prototype car with the keys in it. Is it mine to take and sell?
NO!!!! I believe the same goes for the phone or any property and someone should pay for it. I don’t care if he’s the president of the United States Of America, no shield law should protect against theft of property just because you’re a journalist or have some ties to the media. That’s just wrong! If that’s the case then these shield laws need to be changed A.S.A.P.!!!

Bosco (Brad Hutchings)

It appears that the raid now, ask questions later task force is stopping to ask questions.

Bryan sums up the meta-issue of secrecy very well. I’d add that Apple’s hyper-secrecy is at one extreme of many ways business is done in the valley. Compare to Google. A pretty low level engineer posts something on a mailing list suggesting that Google wasn’t going to “fix” a perceived 3G problem with the Nexus One and the blogosphere goes nuts, but we live another day and find out that Google may be able to enable wireless-N on the phone. I think Apple’s hyper-stranglehold on information pollutes the waters a little for companies that maintain an honest, ongoing conversation with their customers. But, as Bryan implies, it makes for a hell of a show! Except now we know that in Apple’s calculations, this iPhone thing goes way beyond the show.

My walk-off shot tonight goes straight at Jon Gruber. I was surprised to learn tonight that “Daring Fireball” is actually an anagram for “has a giant stick up his ass”. There is something just hilarious about Nick Denton telling Howard Kurtz that Gawker is delivering stories people want to read and that Gawker provides all its information about story popularity for all to see. And something more hilarious about Gruber either not getting the point or not thinking his readers would get the point. Or hell, maybe both Gruber and his readers don’t get the point, in which case that is the best punch line ever.



Well stated all around.

There’s also one other thing that Gizmodo did that was a total dick move, which has nothing to do with the phone itself: They gleefully published the name and info of the Apple engineer who lost the prototype in the first place.

Whether you support Gizmodo or not over their other actions, doing this was totally unnecessary, unprofessional, and flat-out cruel for the sake of cruelty.

As for the whole issue of shield laws and protecting sources, I believe a quote from the previous “ThinkSecret” case judge sums it up nicely:

“Much of the movants? papers and their oral argument stressed the public?s interest in Apple and its products. Movants miss the point. Of course the public is interested in Apple. It is a company which has achieved iconic status.? But an interested public is not the same as the public interest .

To reiterate:


In other words, it would be one thing if the Apple engineer had gone to the bar, gotten drunk, and confessed to the stranger sitting next to him that Apple was dumping toxic waste into the local water supply (or whatever). If the stranger had then gone to Gizmodo with that info and they had published it—a threat to the public welfare by a large corporation. In a case like that, the shield law (and whistleblower laws, I presume) would clearly apply.

It’s something entirely different when the info that is being published has no valid benefit to the public other than satisfying curiousity about an upcoming product.


I?m not really comfortable with the use of the rape analogy in the context of stealing a phone. I suspect that some women, and men, that may be visiting may also feel a bit uncomfortable as well, they just haven?t said anything. I see what you?re saying, and the analogy has been used a number of times in various articles about this topic both on TMO and other sites. It just seems rather over the top.

First of all, my post was clearly not about the Gizmodo incident, nor even about technology.  It was a sarcastic attack on the reasoning in the article.  The kind of reasoning that goes from bad to worse to unspeakable.

But it?s not unspeakable.  Scan through the NFL chat forums, and you will find just such reasoning, ranging from ?she shouldn?t have been wearing that dress,? to ?she had it coming.?  And where do you think those responses come from?  From the reasoning and sly implications like those contained in this article.

I don?t really care about your discomfort over my use of the word, ?rape.?  But you should feel equally uncomfortable about where any semi-justification of a crime leads.  The argument should not be one about how culpable Apple might be, nor Gizmodo?s legal exposure, but the content of the article itself, and the context is and should be, our basic morality.

Instead, you tremble that someone might be upset at the use of a single word.  Where is your head?  There is something larger at stake going on here, and I base that statement ? at least in part ? on your seeing my point, but still being willing to censure, and censor me.


If Gizmodo hadn’t paid (and bragged about paying $5000) for the phone, then it probably would have been OK.  Let’s say it was the bartender himself that “found” the phone, and realized what it was.  And he showed it to Gizmodo, who took pics, and say Gizmodo even paid the bartender for that “privilege”.  Then the bartender immediately gives it to the local police, because it was found property.  No harm, no foul.

But Gizmodo went over the top when they took the phone apart.  And even if they can claim that they didn’t know it was a real Apple phone UNLESS they took it apart, once they came into the knowledge that it was in fact Apple’s property, they could have gone down to 1 Infinite Loop and handed the phone to the security guard.  But they didn’t.  They wanted Apple to publicly give them a letter, to prove beyond question that it was Apple property.  And all to generate page views.

If a national newspaper (say, the WSJ and Walt Mossberg), knowingly bought stolen goods, and then wrote an article about buying the stolen goods, I’d expect that the WSJ and Walt would be investigated by the police as well.  But everyone knows that Walt would NOT have bought the phone, because he knew it was wrong.


The selectively moral looked at the pictures and vids, and now they want to eat the cake too, there’s a non-shocker.

You might be dismayed at this lot, Bryan, but I bet you aren’t surprised.


I wish I had a script that could omit Bosco’s posts. I’ve learned long ago they’re not worth reading and it’s annoying that I’m always having to scroll past them.

Bosco (Brad Hutchings)

@praus. You do. See the gear in the taupie area at the head of this post? Mouse-over that. When the drop down appears, click “ignore member”. I just did that for you grin.

Lee Dronick

I wish I had a script that could omit Bosco?s posts. I?ve learned long ago they?re not worth reading and it?s annoying that I?m always having to scroll past them.

You can set your preferences to ignore any registered poster. Click on the “gear” icon on the right sided of their post, chose “Ignore member.” Then their posts will be hidden though have the option to show the hidden post. You could also set up a Mail rule to do something to the email that will show up in your inbox, move it to a special folder, junk, trash it, or whatever.

Lee Dronick

I see that Bosco responded before I could complete my post.


click ?ignore member?.

Bearing in mind that the fingers in ears approach will only disjoint them further from the conversation, they may as well might as well tie the other hand behind their back as well.

We’ll just have hunt for an excuse for you to be hung drawn and quartered as usual, do you happen to be in the market for a proto iDevice for your blog?


Nookster, are you trying to write your posts in iambic pentameter?

Or are you using a really bad translator?


Thanks Sir Harry I did see that gear thing after I posted but had already ignored Bosco so I didn’t see what his post was about lol


Nookster, are you trying to write your posts in iambic pentameter?

Or are you using a really bad translator?

Ah, I see what I did there, nope that was pure subconscious stream invading my ramble, or I was doing too many things at once.


The point for me is not the $5000 felony, it’s the fact that Giz plainly knew they had acquired a trade secret, whose value to Apple was in the hundreds of millions of dollars, (maybe more; consider the 2-3 months it’s brought forward Nokia, RIMM, Samsung’s answering products). Disclosing trade secrets was their larger misdeed, for which I suspect they are liable.


Trade secrets are protected through non-disclosure and non-compete contracts, not by criminal or civil law.

Neither of which apply to Gizmodo. Thanks for playing, try again later!


I think any/all worry of negative impact to Apple’s business is simply short term thinking.  Might some delay a new 3GS purchase now?  Sure.  Big deal - that pushes revenue out 60-90 days.  In other words, a short term problem.

Do competitors now have a better sense for what Apple is rolling out?  Yes.  Is it a big deal?  Probably not.  We’re talking about a 6-8 week impact here max (WWDC is early June) before the competition would’ve known about it publicly. 

And do you really think the competition isn’t already planning - and far down the road on - upcoming devices with higher specs across everything from battery life to screen rez to processor to ram to storage to cameras, to . . . .  etc etc etc.???

Come one guys.  It doesn’t change anything in the long run.

ANd oh btw, Gizmodo could not have been sure that what they were acquiring was actual Apple hardware until they purchased and broke the device down.  No crime here, sorry.


I have no problem with rumor sites per say. It’s a lot of fun speculating and guessing what any number of companies might be cooking up in their labs.

I don’t happen to feel that it is acceptable for bounties to be offered up for confidential, inside information or in-development prototypes. The results can be quite damaging to companies who spend enormous sums on R and D. This is precisely why Apple had no choice but to address this situation.

If one is to be considered a true journalist, they must abide by some ethical guidelines. Buying stolen property and publishing a company’s unreleased and confidential material is not acceptable.

Guessing and speculation is one thing what happened here is a different animal all together.

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