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There was no crime here. The guy who found the phone first contacted Apple, TWICE, to try to return the phone to them. That has been confirmed by the Apple employees who posted on their forums that they talked to him. They thought he was a scam artist or something because they were low-level employees who were not privy to any information about the new product. Seems that Jobs' secrecy really bit him in the ass on this one.

And NOBODY could argue that Gizmodo had any intention of keeping the phone. If they had, they certainly wouldn't have published photos and videos of it, and as soon as they received an official response from Apple saying "that's our device" they returned it. Apple can't argue that its trade secrets were violated by Gizmodo when it was Apple's own employee who was stupid enough to leave the phone in a bar. They have a responsibility to protect their secrets if they want them to stay secret.

This is just Steve Jobs using law enforcement to try to scare the next guy away from doing something like this with iPad 2. This is how Gizmodo explains their source's attempt to return the phone to Apple:

So you recognize this handset as an iPhone—it looks and works like an iPhone, and it's even disguised as an iPhone 3GS. It's not password protected (!), it's running an OS that looks like the normal iPhone OS only a little different, and it has Facebook and other apps running. (Our source says he didn't poke around too deeply.) Hours later—before the next morning, actually—it didn't work.

The assumption is that it was wiped remotely as soon as either the engineer or Apple realized it was lost—probably later that night, not just to lock down the features of the new hardware, but to avoid spilling the beans on the new operating system. So, with a bricked phone in hand, an obvious course of action would be to call Apple. And as we reported before, that's exactly what happened—our source started dialing Apple contact and support numbers. He was turned away, and given a support ticket number.

Here's how it went down, allegedly, from the perspective of the Apple reps who got the call:

I work for AppleCare as a tier 2 agent and before the whole thing about a leak hit the Internet the guy working next to me got the call from the guy looking to return the phone. From our point of view it seemed as a hoax or that the guy had a knockoff, internally apple doesn't tell us anything and we haven't gotten any notices or anything about a lost phone, much less anything stating we are making a new one. When the guy called us he gave us a vague description and couldn't provide pics, so like I mentioned previously, we thought it was a china knockoff the guy found. We wouldn't have any idea what to do with it and that's what sucks about working for apple, we're given just enough info to try and help people but not enough info to do anything if someone calls like this.

If the guy could have provided pictures it would have been sent to our engineers and then I'm sure we'd have gotten somewhere from there, but because we had so little to go on we pushed it off as bogus.