A sticky point is the value of the phone. If he sold it for $5000, then he stole $5000. If he didn't sell it, but was paid $5000 by Gizmodo to not tell anyone else about it, then the value of the phone is in question. If the value of the phone is less than $400 (and if you add up the cost of each component, and take into account that it was remotely bricked, that is easy to argue), then there is no particularly severe crime involved. A slap on the wrist, at worst. If it's $5000, though, then jail time could become involved.

This defense is also good for Gizmodo. It's not illegal to pay someone $5000 to not talk about something to the media. It's the basis for pretty much every employment contract in existence.

Like most high-profile cases, this is not particularly clear-cut. He didn't walk into Apple headquarters, gun down a few guards under the watchful eye of a security camera, take the iPhone, and sell it to the highest bidder. That would be clear-cut "grand theft" (not to mention, murder). Instead, he found it lying around in a bar, asked everyone in the bar if it was theirs, was told no, the excitement and curiosity went to his head, and he ended up with $5000 for letting Gizmodo take some pictures of the thing. A crime? Maybe. But not obviously.

(There is a lot of hate for this guy, but think about it. If you found a cool electronic gadget laying around in a bar, wouldn't you play with it? And when you found out it was a fucking top-secret prototype of one of the most secretive companies in existence, wouldn't you be a little excited? And when you're excited, do you always make the best decisions? If not, you don't belong on HN.

Sure, the guy is a sleaze-bag for pocketing the five grand. But Apple is a sleaze-bag for paying slave children build the phones in the first place. Two wrongs don't make a right, of course, but it is helpful to treat both parties with the same scrutiny; at least when we are using words like "sleaze-bag".)