Con-law implications of the missing iPhone 4G?

UPDATE 4/30/10: Things heated up further this week when police executed a search warrant to seize computers from Gizmodo editor Jason Chen. This is as expected in point 2 below, but has the potential to get us an answer to point 3, which is cool.

As I think everyone saw, this week Gizmodo leaked photos and supposed reverse engineering of a (previously remotely bricked) next generation iPhone.

This has sparked much commentary on the authenticity of the leak (was it all an elaborate Apple promotional hoax? – more on this later) and the weirdness of Steve Jobs’ security protocols (there’s a mysterious list of employees authorized to leave campus with secret gear).

Most interesting to The Beverage is the constitutional law discussion on Slate.

Is this right?

There are basically three issues I can see (there are always precisely three):

(1) could Apple have stopped the publication of secret new iPhone details?

This is obvious no.

(2) did Gizmodo break the law in publishing the secret iPhone details?

Appears probably yes, subject to some interesting questions about whether Apple was adequately covetous of its secrets (see above link on Jobs secret list).

(3) is Gizmodo somehow insulated from responsibility for the trade secrets disclosure because they are discharging a First Amendment protected news-gathering function?

I think on the face of existing law, this is also an obvious no, but it would be interesting to revisit in the current age and on these peculiar facts.

On a side note, the hoax theory is nonsense to me, unless you are willing to entertain the truly sinister notion that Apple has somehow tricked the poor, unfortunate engineer into believing that he actually lost the next generation iPhone at a bar while drunk on his birthday.

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