In Gruber's post he points to a law that clearly state that if the theft was done in the interest of justice, then it could be considering OK. I think wikileaks might be able to use this. They are doing it in the interest of the public in their mind which is completely different here. Gizmodo did it in the interest of making money and paid for a phone they knew had been stolen.
Also, wikileaks isn't hosted in the US and thus doesn't have to obey to American laws. They also did not steal those videos these are copies and in my IANAL opinion is completely different.
There's also the problem that the "found on a barstool" story came from the guy who sold it to Gizmodo. Gruber hints at another possibility, but let me just lay it out explicitly:
1. Powell takes the photo that he posted to Facebook, but uses the front-facing camera to do it. (Hey, field testing under real-world conditions!) 2. Seller notices this (iPhone with a front-facing camera? WTF??). 3. Seller puts two and two together ("cha-ching" noise, dollar signs roll up in their eyes, etc.). 4. Seller sticks around for a while, picks Powell's pocket at the first opportunity, and bails. 5. Seller lays low for a while to see if word gets out, thinks up a plausible story, then makes the rounds of the tech blogs. 6. Profit!
If this is what Apple believes happened, it's unlikely they'd take any action (assuming they take action at all) until after the phone is announced/released. Starting that ball rolling now would be too big a distraction from the actual launch. But after that it could get very ugly for Gizmodo very quickly.
Also, wikileaks isn't hosted in the US and thus doesn't have to obey to American laws. They also did not steal those videos these are copies and in my IANAL opinion is completely different.