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Think Secret Gets Lawyer
im333mfg writes "Looks like Nick dePlume and Think Secret have gotten some much needed help for their upcoming lawsuit battle with Apple.
"Terry Gross of Gross & Belsky LLP, a lawyer at the forefront of Internet law since the net's early days, will defend Mac news Web site Think Secret from a lawsuit brought by Apple Computer Inc. 'Apple's attempt to silence a small publication's news reporting presents a troubling affront to the protections of the First Amendment,' said Nick dePlume, the site's publisher and editor in chief. 'I'm grateful that Mr. Gross has stepped forward to help defend these crucial freedoms.'""
The problems is that Think Geek obtain information freely from normal information gathering techniques such as social engineering and trend research using the internet. A California law prohibits divulging trade secrets yet if I remember correctly there is a set of laws each state agreed to abide by when joining. This law is freedom of the press and freedom of speech. Think Geek never signed a non-disclosure agreement thus if you or a representative of your company tells me something than that information is no longer protected as a trade secret unless there is a contracted obligation - the entity didn't adequately protect it's information. Case closed unless the corporation wants to sue the party in oblivion, which might be the case that we are seeing today. I don't see how this case can even get to the court level, as it should be dismissed under the grounds of no contractual agreement between the parties; thus, his speech is protected at the federal level.
As for the party that disclosed the information then they would be in breach of the NADA contract. Does Think Geek have to tell apple that divulged the information? Anyone remember Oliver North who forgot a lot of information during the Iran Contra scandal can attest that Think Geek surely can't remember the names either. Should Think Geek have to tell? Does the press have to cite sources? Nope they can protect their sources but if they can become in content in the courts and spend a little jail time - but were not talking about a murder trial or a treason tiral.
Three possible reasons come to mind:
1. The EFF might believe that the AppleInsider suit has less merit than this suit;
2. The EFF might believe that if the AI suit succeeds, the damage to our rights will be more significant than the damage to our rights if the TS suit succeeds;
3. The EFF might believe that the suits are substantially similar and are only out to establish a precedent, so it makes no sense to represent both defendants.
If every individual has a right to publish stolen information with no expectation that they will ever have to reveal how they got that stolen information, then no one's information, no matter how private or trivial to the public interest, will be safe
Currently, personal and institutional information is protected in two ways: First, access to the information is limited to selected individuals. It is this limitation, enforced by technology like passwords, encryption and physical isolation, that most people think of as information security. The second protection is the contractual and legal obligation that people with access to the information have to not misuse it.
No matter how elaborate the technological and procedural protections for everyone's information, at some point that information gets viewed by a human being. If we have no legal means of holding those individuals accountable then information security, and the privacy it brings, is a dead letter. Granting everyone, from private individuals to vast commercial interests, the right to disseminate stolen information destroys the second protection utterly. Anyone with access to protected information can steal it and perhaps even sell it with little expectation they will be caught.
What we have here is a tag team of privacy violation. The thief steals the information and then the publisher "fences" it. Shielding the thief as a "source" could open the floodgates for information theft. Today, we see the violation of Apple's NDAs (Non-Disclosure Agreements) but the same legal concept could just as well apply to an individual's medical and financial data. Even if the actual theft were theoretically illegal, how could one prosecute if the person disseminating your private information had a legal right to protect the identity of the thief?
The internet changes all the rules. The old style press shield laws won't work in the internet era.
The problem with your argument is that it's not up for you (or Nick DePlume) to decide when it's okay to release Apple trade secrets. I'm not arguing the merits of going after somebody who didn't sign the NDA. But those were trade secrets, even if it was only a day or 2 before they were to be released to everybody.
There is something truly wrong if Apple can get this kid to divulge the source of his "leaker" when comparatively, Robert Novak can leak the name of an undercover CIA agent any not have to divulge his source? Tell me if I'm wrong here. I am not a political beast, however I am an Apple fan and this is just an outright atrocity in our society. How can we hold some 19 year old to the fire over something as minor as this and we can have no accountability to such things as the Robert Novak affair? And heck he is STILL employed at CNN!
The thrill of the Apple rumor mill, particularly around Mac World in January, is intoxicating to me.
But that said, I do think there is a line between freedom of speach and soliciting priviledged information from people you know shouldn't be talking to you.
It isn't enough to say "I have annonymous source e-mail". If you are going to be a reporter, then there are ethics involved. Getting the scoop on a story by any means doesn't cut it for me.
Plus, did you see how wildly Apple's stock was swinging around all these rumors? we are talking 7% in a day market cap swings - that is big stuff for a teenager to be toying with.
I only came here to do two things; kick some ass, and drink some beer...looks like we're almost out of beer.
What if somebody stole a manuscript for the next Harry Potter book, or StarWars Episode III, and slipped it to "ThinkPotter" or "ThinkJedi.com," who promptly posted it on the internet? Would they be silly enough to claim 1st Amendment protection?? Does this make them 'journalists' who got a 'scoop'? NO! They are scoring a quick buck and some notoriety, profitting from stolen goods!
What about distributing sensitive classified government documents, such as the names of undercover agents, on "ThinkCIA.com"? When they get offed, and the feddies come knocking, you will be free to argue your 1st Amendment rights to yourself for the rest of your life while you rot in solitary confinement.
ThinkSecret redistributed stolen, protected information. This is not protected speech. In this case ThinkSecret are not journalists, they are accomplices!! And accomplices that **profited** from their actions, I might add!
The only event in which this *would* be protected speech would be if the stolen information exposed some crime in Apple, in which case whistleblower laws would protect the informants. Get a clue, gentlemen: the 1st Amendment does not give you unlimited rights to broadcast whatever you want. It does not protect you from having your trolls deleted by forum mods, or your letter to the editor from being thrown away unpublished. It protects you against being censored by the **government** for spreading your political and/or religious beliefs, even if they are contrary to what the govt. is promoting. THAT is your freedom, not the right to post warez, not the right to break your NDA, and not the right to take a handoff from somebody that breaks THEIR NDA and make a pocketfull of cash on it. You don't have to be a lawyer to know this; paying any attention in High School Govt. class (for US citizens) should be background enough.
Repetition does not transform a lie into the truth. - FDR
Here's the problem many people overlook: many states have specific laws making it illegal to divulge information from someone where it can be reasonably known or assumed that a binding confidentiality agreement was breached. (Don't like the law(s)? That's another discussion altogether and has nothing to do with the first amendment.)
What remains to be seen is what, if any, of these laws apply, and whether or not the laws of Massachusetts, California, federal, etc., can be applied to this case.
And, as many people have said, they don't really care about Nick Ciarelli (yes, for those who don't know, he's 19 year old Harvard student). They care about finding out who within the company (or contractor, etc.) is continually leaking this extremely accurate information to Think Secret. And no, it's not "known" elsewhere. He's got a very reliable mole, or a set of them, and Apple wants to know who they are. Hint: yes, these are people who definitely have binding confidentiality agreements with Apple.
Regardless of whether or not Apple "should" or "shouldn't" be doing this, whether it's good PR or not, etc., if you can't see that it's wrong, legally and ethically, for these people to be leaking this information, then, well, we have nothing further to discuss. Further, whether or not Nick should be publishing it is a subject of further debate, but he's the one person who knows who these people are. Is it journalism and free speech when you violate laws (the one I spoke of in the first paragraph) to obtain information? Ignorance of the law is no excuse...
And remember, whether or not you fundamentally *agree* with the law is irrelevant. It's either illegal, or not. (Yes, yes, sure, there's gray areas, but that's not the point I'm making. And sure, maybe Nick "fighting it" in this way is one mechanism to examine the validity of these laws, and further, the role of an online journalist and his information gathering mechanisms, what can be construed as soliciting known confidential information, what constitutes a violation of these laws in this context, etc.)
Just some things to think about.
You see it as a zero sum game, don't you? It's either Public, or Profit, and nowhere in between. No information should be kept secret, and all information should be free.
I hate to tell you this, but there's a balance. And sometimes the concept of "Profit" of "Corporations" - those who employ the Public - is good for that same Public. Sometimes the protection of the mechanisms that make us a prosperous society and protect the concept of fair competition are good for that same society.
Don't talk about information as if it's some fanciful abstract thing that should fly free as red breasted robins now that we have the amazing Interweb. You make a gentleman's agreement with your employer to not leak his secrets to the world, you fucking keep it. You don't surreptitiously break it, secretly leaking private information that you have been TOLD is private, and asked not to leak, as a condition of your employ, for years to feed your own sense of selfishness, or self righteousness, or self confidence.
Just because it's easy to do something doesn't mean you should do it. Please tell me how it is inappropriate for a business to want to keep its own ideas secret. If you're just one of those anti-corporate anti-business types, or think all information should always be free and unlimited under all circumstances, then you needn't reply, because we'll be in fundamental disagreement.
I've got mixed feelings on this.
From one point of view, I agree Apple is being a bit of a hardass about this. This isn't the only site leaking news. As I recall Hitachi leaked that Apple signed to purchase 60GB mini drives (now used on iPod photo). One of the IC manufacturers said that Apple signed on some flash memory technology... etc. etc. etc.
I didn't see big lawsuits on those. And lets not forget about Time revealing the new iMac.
on the other hand...
I do believe that Think Secret has been itching to get accurate insider details. And in recent years have had way to much accuracy.
Take a look at their contact page for a great example of how eager they are:
http://www.thinksecret.com/contact/
voicemail, fax, email, online form, postal...
any method under the sun. I can't think of any other news organization so willing to cater to potential informants.
A company does have a right to use Non Disclosure Agreements to keep trade secrets. Every company does it. It's normal business. I can't think of one company that doesn't do it. Even non-profits have to do it.
Soliciting someone to break it isn't ethical. That's the bottom line. And it's not really freedom of speach.
Encouraging someone to commit an illegal act or break a legal agreement isn't good.
Someone who hires a hitman to kill his spouse isn't any better than someone who does it themself. Encouraging people to do your dirty work doen't make you any better than the guilty party.
IMHO this is a pretty simple case... and will likely be settled out of court. I can't see ThinkSecret standing up in court... they have no real defense. This isn't freedom of speach anymore than saying you have a bomb on a plane.
They will settle on undisclosed terms, ThinkSecret will walk away with it's tail between it's legs covering it's severed ball-less scrotum.
Thinksecret will re-invent itself a bit, and stay clear of this activity... all will be happy.
There not going to court. ThinkSecret can't be that stupid. They have no defense that won't cause a judge to (literally) laugh at them.