I believe the issue here is knowingly selling, purchasing and exposing to the public Apple's trade secrets. From the wiki:
18 U.S.C. § 1832,
http://en.wikipedia.org/wiki/Economic_Espionage_Act_of_1996 criminalizes the misappropriation of trade secrets related to or included in a product that is produced for or placed in interstate (including international) commerce, with the knowledge or intent that the misappropriation will injure the owner of the trade secret. Penalties for violation of section 1832 are imprisonment for up to 10 years for individuals (no fines) and fines of up to US$5 million for organizations.
Gizmodo is either run by complete idiots or knew Apple wanted this out. It's as simple as that. We will know the answer when and if Apple files charges. No charges, no crime, no stolen phone. Just a huge PR coup for Apple and the pub that will now be filled with people hoping to score the next Apple tablet prototype.