Slashdot Mirror
EFF Joins Fight Against Apple Lawsuit
sutterpants writes "The BBC is carrying a story on the legal battle between Apple and free press advocates. The Electronic Frontier Foundation has joined in the fight to protect journalists from revealing their sources. Which carries more weight: the right of Apple to protect their trade secrets or the rights of journalists to protect their sources?"
...and we still don't know who Deep Throat was, I have to admit surprise that modern corporations can muscle the media better than the federal government, particularly the Nixon administration.
tasks(723) drafts(105) languages(484) examples(29106)
"Which carries more weight: the right of Apple to protect their trade secrets or the rights of journalists to protect their sources?"
Journalists.
Next question.
"Which carries more weight: the right of Apple to protect their trade secrets or the rights of journalists to protect their sources?"
Why not look and see which right is guaranteed by the Constitution? Hmmm, nothing about trade secrets there, but I do see something about free speech and freedom of the press in the First Amendment. So I would pick door number two.
Which carries more weight: the right of Apple to protect their trade secrets or the rights of journalists to protect their sources?
The rights of Apple to protect their trade secrets is not really the case here, as I understand it. The breach of trade secrets was done by, I assume, someone from inside Apple. This is the culprit that Apple should seek. But they are taking the easy route and trying to bully a small time web site in the hopes that it will discourage similar reporting in the future. Not very upstanding behaviour. What they should be doing is a security audit to find where the leaks are coming from. However, that is much more difficult and complicated. Its easier to try and put the fear of litigation into everyone. *sigh*
I think the freedom of press is more important, since it is a constitutional right. The Constitution does not say that a journalist has the right to keep his/her sources secret, but this has been upheld in court countless times... If you punish the press for being the mouth of someone else, you're not solving anything.
If you have trade secrets, you need to be very careful who you give them to, period. If a person you trust releases their secrets, its because you didn't do a good enough job of understanding that person.
If I were a journalist, I'd go to my grave with my sources, if they wanted to remain anonymous. Freedom of speech also includes the freedom to shut up. That goes for corporations and journalists.
It's just a matter of time for a precedent-setting case to take this huge chunk out of the First Amendment. It's gonna happen. I would just hate for Apple to be the one opening the flood gates.
Currently bidding on sig
Which carries more weight: the right of Apple to protect their trade secrets or the rights of journalists to protect their sources?
That this is even a question is cause for concern. Originally, from what I gather from history, journalists held a very important role in our society. Arguably more important than politicians: They were the watch dogs. They were the ones keeping our elected representatives honest. They had to have free reign, unrestricted by those that held power, to do their jobs effectively.
Now of course, journalists are simply mouthpieces for which ever party they subscribe to. Maybe it's always been that way, who knows, I don't really glean that much off the history I've read.
Mod me down with all of your hatred and your journey towards the dark side will be complete!
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. Is it journalism and free speech when you violate laws to obtain information? Ignorance of the law is no excuse...
I don't see what this has to do with attempting to force the journalists into releasing their sources.
The sources are the ones that are breaking the confidentiality agreements and leaking the information to the media. The journalists are then doing their job and reporting the information to the world.
If Apple wants to stop the leaks then they need to crack down internally and stop the people from breaking the confidentiality agreements. Whether that means paying the people more money, hiring more trustworthy individuals, or doing some sort of INTERNAL investigations, I don't know. What I do know is that they should NOT be attempting to coerce (through legal means) journalists into handing them the culprits on a silver platter.
Journalists need the protections so that they can be trusted by sources to release information w/o revealing the persons behind that release. If Apple is able to deny this right of protection over something as silly as a new product design how are sources supposed to trust journalists over something important?
The constitution also explicitely allows for intellectual property law. And Apple are not concerned with suppressing the speech. They just want to find who brached their contract. This is not unreasonable. You can make an agreement with a private entity not to employ your freedom of speech.
by suing a scapegoat, Apple can hype up the product anticipation before its launch simply by word-of-mouth. Afterwards, they'll probably settle out of court quietly for a very low price. slightly dirty tactics, but not that much real damage
Well that's an easy question. Apple is right. Apple is always right! Now if it was Microsoft...
The funny thing is that if Apple prevails, then Microsoft will be right as well! If Apple wins, then you can bet that Microsoft and others will start leaning on other posters of leaked information. An Apple win could only have a chilling effect on arguably all of journalism. Even idle speculation that just happens to be right could be subject to legal action. Hmmm, to quote the Stooges, I'd better find myself a cheap lawyer! ;-)
To the making of books there is no end, so let's get started
Wait, wait, wait. The first amendment was included in the Constitution so that never would it be the case (as in England at the time), that journalists or publications would have their content censored or banned by the government for speaking ill of it, or its policy.
None of that is in question. Extend that to Apple. Apple is NOT suing so that the website gets shut down or their content restricted. Incorrect.
What IS happening, is Apple would like to know who the source of the information is, so that they can appropriately charge the person with breach of contract (which they ARE).
This has NOTHING AT ALL to do with the First Amendment, this has to do with legislation relating to journalists' sources. I'll admit freely that I don't know anything about legal precedent, BUT I can tell you that the case has NOTHING to do with the First Amendment.
--- What
It does not give you rights over another entity. If you signed a confidentiality agreement and violated it a company has the right to find out that you did. If someone else is making use of this information I feel the company has a right to compel them to reveal their source.
People do not readily understand the 1st, let alone the 2nd. The key thrust of the Consititution and Bill of Rights is to limit what the Government can do to us. It is not granting us rights it is protecting our rights.
As such it does not apply here.
* Winners compare their achievements to their goals, losers compare theirs to that of others.
Yes it is wrong that whoever is leaking this information is doing it. Yes, if caught they should be punished according to the law.
NO the press should not be forced to give up the name of said individual. If the press is forced to name names, then in the future people will be discouraged from going forward, and you would then never hear about the more important scandals, the kinds of things involving corruption, government, the environment, and the usbverting of laws.
Freedom of the press is one of the most important freedoms there is.Don't try to tak eit away to protect some company's bottom line.
The basic premise of capitalism is that selfishness is the most effective means of encouraging an activity. Since a free and informed press is viewed as a public good, the confidentiality of sources becomes just as "high and mighty" a concept as property rights or due process.
[Set Cain on fire and steal his lute.]
Sometimes the Apple users need to remember that Apple is just a corporation. We tend to think of Apple as being "different", so folks tend to be appalled when Apple ACTS like a corporation. Face it, they are out to make a buck like everyone else.
Crushing my karma one post at a time.
When that "third party" is the Press, then the 1st Ammendment applies. Regardless of the nature of the organization whose confidentiality was breeched.
Your argument is spurious. Being a member of the press offers no specific protections in the constitution. Anyone can act as a reporter, just by reporting information. Let me pose an example for you. If a reporter yells "fire" in a crowded theater, when there is no fire, are they immune to prosecution?
Reporters are not protected when breaking the law, except in a few specific cases where whistle blower statutes protect reporters and sources when their is an overriding public interest or threat. I'm sure many mac fanatics would have died had the specs not been leaked, so in this case I'm sure the reporter in question will be protected.
Who ever signed the NDA and ignores it is subject to the penalties in the NDA.
An NDA is just a contract like any other.
No laws are broken but you can be sued using this contract.(FYI:IANAL)
In this case Think Secret is a 4th party and is NOT subject to the NDA.
This is an "Apple leaking info" problem.
Not a "Think Secret just so happen to receive Apple's info" problem.
If Apple wants to "out" the leaks they should create "special projects" and place their suspects in that project.
Then watch the Think Secret web site...
Obama's legacy: (N)othing (S)ecure (A)nywhere and (T)error (S)imulation (A)dministration
that's great. really great
so instead, journalists should live in constant fear of what to report because it might cause someone else harm?
with that view, how long will it take for us, citizens of oceania, to expect an increase of our chocolate ration?
vodka, straight up, thank you!
While the information in question was classified as a trade secret, without him knowing that it was coming from someone under NDA he's not in violation of the UTSA, which is what he's being sued under.
All that said, the UTSA is valid, but it's not that hard to get around. Simply not asking whether or not the source of information is bound by a NDA is more than enough to protect you from liability under the UTSA.
Bottom line, Apple is bringing it's weight to bear on someone in order to coerce the names of his sources, and those are protected by 1st amendment rights. I say good on the EFF for stepping up on this one.
I have no regrets, this is the only path.
My whole life has been "UNLIMITED BLADE WORKS"
It's at least debatable whether or not knowledge of a product Apple is putting out is indeed a "trade secret" under the UTSA.
The UTSA defines trade secret as follows:
"Trade secret" means information, including a formula, pattern, compilation, program device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from no being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.
You can kinda shoehorn the existence of some product into there, but it doesn't really fit.
And in any case, nobody ever changed a bad law without breaking it in some fashion. It's at least arguable that the UTSA is a bad law to begin with, if it was indeed broken in this particular circumstance.
- Give a man a fire and he's warm for a day, but set him on fire and he's warm for the rest of his life.
have you looked in an Apple box lately?
IDE hard drives... ATAPI optical drives... ATI AGP video cards ( I have a GeForce 3 in mine BTW)
so who's accessories and parts am I buying?
I am the Alpha and the Omega-3
Who wants a computer that, when it detects a problem, displays a sad icon and won't let you do anything until you call it's 'parents'?
Most people, I think, want this kind of computer. Think of cars: when your car's o2 sensor fails, or when the emissions detectors find exhaust is filled with too many biproducts, a little light comes on asking you to take the car to its 'parents'. People don't want to know how to fix their cars, they want the dealership to repair them. People want appliances which 'just work', and when they fail to work, people want someone else to handle it, for the most part. Geeks are a rare breed in that we would rather see the entire contents of a memory dump in order that we may spend hours upon hours hacking a failure until it is resolved.
Ammendment I:
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the government for a redress of grievances.
Freedom of Speech and Freedom of the Press are two separate items. A fact that is quite frequently forgotten. I, for one, see six separate points in the above text.
The Press has its own freedom, outside the concept of "Freedom of Speech."
tasks(723) drafts(105) languages(484) examples(29106)
Do you really not appreciate the difference between revealing information clearly in the public interest (which is defended by freedom of the press, 1st amendment rights in the US, etc.) and revealing any old information even if it should reasonably hav ebeen known to be obtained via illegal means?
Freedom of the press is not an absolute, nor is there any sort of superlaw that gives you a right to protect sources who you know damn well have broken the law. With rights come responsibilities, always. In this case there is no over-riding public interest, and there is a legitimate reason to want to track down the sources who are breaking the law and violating the trust of the people whose NDA they signed. Protecting the source is perverting the course of justice, pure and simple, and should carry all the penalties usually associated with such behaviour whether the protector claims to be a journalist or not.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
- If the press is denied the right to protect their sources, it automatically puts us into a totalitarian state, as far as the government will henceforth dictate what we see and hear. They already do to a point, but if you tell the lawmakers that all's they have to do is prove that a law was broken, in order to diseminate the details of who told who what, you'll soon see a flurry of new laws added to the books which will more or less prevent any opposing views from ever seeing the light of day.
-
The point is, we either enforce rule of law as set by society in this country, or we don't. And yes, we can work to change law(s), protest against them, and use the legal system as a backdrop for that fight.
-
I do agree that Apple has a right to do an investiagation, and to punish the person responsible, if they in fact did violate a signed non-disclosure agreement, but I disagree that Apple can just muscle in and demand information from someone who posted that information on a rumors site. There was never a "This is a fact, and we know so because Mr. XXX told us" type of story... It was a "Here's the latest rumor we've received on Apples forthcoming product" type of thing. If they had posted papers stamped "Confidential: You cannot reproduce this document based on your NDA, etc...", then they are clearly in violation of the law, but that's not what happened.
-
My last point is an obvious one: If you punish the people disseminating information anonymously (ie, the publishers) by making them reveal their sources all the time, then fewer and fewer people will be coming forth with information in the future. This has little implication when considered in this "Apple vs. the press" context, but think bigger, and consider where we'd be with informants on a bigger scale. Watergate anyone?
I fully agree that Apple has a right, and arguably a need to hunt down whomever broke the non-disclosure agreement with them. But they should do that by either tracking their releases better, and possibly tailoring them slightly differently so that they can tell who leaked the version they were given, or they should do so via good ol' nose-to-the-grindstone detective work. Not this bullying tactic that's become so hot in the last year or so (RIAA, MPAA, and so on).Do you like all those wonderful stories of China cracking down on Internet cafes, and any non-China authorised news? I hope so, because this is an excellent example of what you're describing here: Government makes the law, and they decide who has broken them. At least in USA, we still have the ability to be judged by our peers, and to determine if a law is unfair, or is violation of our constitutional rights. Your post seems to indicate that we should go strictly by the books, and not bother to "look deeper" into the subject at hand with an open mind.
I agree with this, but disagree that it's as black and white as "We enforce, or we don't". Nothing will ever change if everyone just follows the written word of the law, without question. I'm not saying to go break laws, but I am pointing out that some laws were made by lawmakers to benefit them, not society as a whole.
People still have rights in this country (maybe less than before Bush and his henchman took office, but nevertheless...), and it's just plain wrong to assume that because you have money, and a lot of lawyers, that whomever you want to go after is immediately assumed to be guilty. Similarly it's ridiculous to assume that every associate of the violaters is automatically equally guilty.
Why do you bother? There are those that will defend, to the death, a "corporation's" right yo profit by any means necessary. If this requires knifing Grannie, well she shouldn't have gotten between the "corporation" and their money.
Do you really believe that, as an absolute?
Consider what would happen if the press were effectively bought by politicians or big business in the absence of restrictions on spending. After all, they're free to print whatever they want, including whatever generates them the most advertising income, right?
What public good came of this disclosure? More generally, what public good comes from disclosing any business's trade secrets prematurely and thus damaging them (and all their investors -- that's your pension, boys and girls)?
A free and informed press is only a public good if it uses the information available to it responsibily and in the public interest. In this case, they have done neither.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
actually, no. they is not a Chilling effect on whistle blowers because whistle blowers have special protections under the law.
you are comparing a company killing thousands of people with their technology with a product announcement. are you drunk?
I am the Alpha and the Omega-3
Which carries more weight: the right of Apple to protect their trade secrets or the rights of journalists to protect their sources?"
/. , but I say Apples right to protect their trade secrets.
An unpopular view on a site like
The media in general and the press in particular seem to believe that they have a sacred right to what they call the "freedom" to print / publish anything which sells a story without naming sources or providing a means for those sources to be independently verified/validated.
This "right" can and usually does amount to the right to invade the privacy of private individuals and (in the UK at least) to avoid regulation through their own willfully toothless watchdog, the Press Complaints Commission.
I concede, however, that there may be a fine line between commercial/trade secrets and the (genuine) public interest, in which case I'd side with the media.
For instance, a credible source within a large financial institution leaking details of how much profit that institution has made by misselling financial products would, in my view, be in the public interest. The same source leaking details of the CEOs extra-marital affairs to a "gutter" daily, IMHO would not be in the public interest.
He started running this site when he was what, 13? I didn't even know that the UTSA existed when I was 13, let alone know what an NDA was. Since that point in time, has he openly requested that apple employees break their NDAs? No, he hasn't. He put out an open call for any information from anyone who may or may not have it, and he released it online.
First of all, I don't buy the ignorance excuse. In Nick's case, he's been doing this a LONG time, so he does know what's going in, and the issues at hand have happened since he was over 18 years of age.
While the information in question was classified as a trade secret, without him knowing that it was coming from someone under NDA he's not in violation of the UTSA, which is what he's being sued under.
It's if he *reasonably* should have known it was coming from someone bound by an NDA. This isn't one of those "if you ask if someone's a cop they have to tell you" myths (they don't), and likewise, you just can't claim ignorance when you're getting information about things like a sub-$500 Mac, probably one of Apple's most closely guarded secrets ever (until Think Secret published it); one which most Apple employees themselves didn't even know about until Macworld. He has sources within Apple or within Apple contractors, period, and he knows damned well they're bound by NDAs. Of course, I can't categorically prove that, and the legal process will attempt to discover this, and his disposition, etc., and his legal team will no doubt paint him as hapless, innocent "blogger", when in reality, he knows damned well what he's doing.
All that said, the UTSA is valid, but it's not that hard to get around. Simply not asking whether or not the source of information is bound by a NDA is more than enough to protect you from liability under the UTSA.
Untrue. See above.
Bottom line, Apple is bringing it's weight to bear on someone in order to coerce the names of his sources, and those are protected by 1st amendment rights. I say good on the EFF for stepping up on this one.
Ok, if it's because you think the UTSA is fundamentally "wrong", I'll agree with you. They can definitely protest. However, as I thought was clear in my initial post,
- 3rd parties, including possibly "journalists", might be prohibited from revealing information that was obtained from someone who can reasonably be assumed to have broken a confidentiality agreement (and, further, if anyone with a web site can claim to be a "journalist", then it would seem that a law like the UTSA would be rendered useless - try to at least understand that, whether you agree with the law or not)
- The first amendment has already been *unsuccessful* in various similar cases of trade secret leaks, even by 3rd parties, as noted in the Washington Post article
So while you can make the argument you're making, it might not represent the reality of the situation.
How are journalists to know if a company is leaking information on purpose to create a "buzz" or if they are receiving information that the company does not want to release? This isn't about trade secrets, but Apple trying to control which publications get the story first and which don't. This is new marketing which says to control the story by controlling who tells it.
This is the same marketing trend which has now migrated to government and has the whitehouse press room stacked with reporters favorable to the president. The same marketing which makes controlled "leaks" of information to titilate the media and get a story out, but still allows a degree of deniability.
If I were on a jury I would say that any reporter receiving information from an employee of a company can assume that that person is authorized to release the information.
I believe the only available course for apple should be against those that might have leaked the information. That will force them to weigh the real costs of pursuing this and make them more likely to compartmentalize information that they truly want to remain secret.
If some burger joint tells every teenager that works there the recipe to the "secret sauce" and then they find it published on the internet the next day it is their own damn fault. Likewise if Apple has told so many people its "secrets" that they can't come up with a short list of who may have "leaked" the information, then it isn't a secret and no one outside the company should be expected to respect it as such.
Journalists do not give up their source so that they might protect the source's right to anonymity.
The only problem is that someone breaking a trade secret and giving it to a journalists never has a right to anonymity in this case.
It is similar to you telling your lawyer or psychiatrist that you intend to go hurt someone. Not only do you lose your right to confidentiality (these two professions are normally protected by attorney-client privilege and doctor-patient privilege), but in that case both of those people are even REQUIRED to inform the correct people.
This is not a case of telling a journalist *ABOUT* an illegal act, this is a case where telling the journalists *IS* the illegal act, and the journalist was party to this illegal act.
The sources are the ones that are breaking the confidentiality agreements and leaking the information to the media. The journalists are then doing their job and reporting the information to the world.
One problem - the journalist, at the same time, is knowingly accepting information they know to be protected by an NDA, and that makes the actual act illegal.
There is a big difference, in my head, between telling a journalist anonymously about a crime, and telling a journalist something illegal to be told.
- (c) 2018 Hank Zimmerman
Ethics != The Law != Morality
Ethics, the Law, and morality are three different horses, and they are not all running in the same direction. Nor are the ethics or responsibilities of one party necessarily in line with the others.
A journalist or publication, ala Think Secret should be (and is) reporting on interesting information, regardless of whether someone else thinks it should be secret or not. Without this, the press would be a mouthpiece for corporate 'press releases' aka propaganda. The fact that the legal system has been manipulated into the supression of speech / information is wrong and immoral, and the law should be changed. Note that it is not immoral or unethical to disobey an immoral or unethical law.
If you can't see that this is true, then, well, we have nothing further to discuss.
Your question has been answered already. You chose to ignore it, hence it is flamebait, because you just want to create an argument.
Journalists need the protections so that they can be trusted by sources to release information w/o revealing the persons behind that release. If Apple is able to deny this right of protection over something as silly as a new product design how are sources supposed to trust journalists over something important?
The law protects journalists and their sources when it is something important. They do not have to reveal sources if their is a overriding public interest or danger. They are not protected in any other case (like this one). This is just corporate espionage. If the article had said the government is including spy cameras in the new products, or that they cause cancer and Apple does not want you to know, then the reporter and his source would be protected by whistle blower statutes in most states.
Short answer: yes. Long answer is that an unrestrained press can do damage to members of the public, but overall an informed public is as essential to public liberty as the right to bear arms.
The reason I brought up property rights is because they are not an unambiguous good either, but essential for the creation of wealth. In the exact same way a free press is not an unambiguous good, but is essential to create and maintain freedom in a nation.
[Set Cain on fire and steal his lute.]
It's simple really. If you have signed an NDA then your "free spech" / journalistic rights are nil / nada for that item. If a journalist is dumb enough to sign such a thing and then write about it... well shame on them and sue their butt or whatever. OTOH if they got the information from another source who has singed an NDA. Well to bad, the journalist should not be required to reveal sources.
My karma is not a Chameleon.
Also, what constitutes a "journalist"? Anyone who has a web site? How is that defined? And yes, this is a serious question.
Well, I hope the court isn't trying to figure this out.
Even the lamest 'blog is a "journal" unarguably. So yes, anyone with a web site is a "journalist". The government should not get into the business of determining who's a "legitimate journalist" and who's a "illegitimate journalist not worthy of the protections of freedom of the press". To do so would amount to licensing journalists, which I think is very much the wrong idea.
But I don't see why any of this matters. The first ammendment (you know, the thing which might protect Think Secret from legal action under the UTSA) makes no mention of "journalists"; only freedom of speech and the press. Hopefully you don't actually need a Gutenberg printing press to be considered "press".
I'm not a smorgasbord.
Lets put it this way. Is it OK for the press to publish your bank account numbers and pass phrase that a hacker gave them? Is it OK for them to publish the codes to launch nuclear missiles given to them by a foreign spy? Is it OK for them to publish slanderous and completely untrue information in order to inflate their own stock price? The answer to all of these questions is "no." The reason is because they break laws. There are several laws that restrict free speech and they apply to both members of the press (a legally undefined term) and everyone else. The reason these laws exist is because the supreme court and congress agree that other clauses of the constitution take precedence over the freedom of the press clause in a few specific instances. This does not in any way stop them from publishing this information, it just means that they will be punished by the law after doing so. Get it?
Being a reporter does not make it legally OK for you to break laws, even ones relating to publishing information and even if that information is true. You may not agree with those laws, but even someone as anti-law and anti-big-government as myself is glad that their are a few of them. Just as a reporter can be put in jail for printing a giant sign that says "WARNING FIRE, EVACUATE IMMEDIATELY!" and putting it on the screen in a movie theater, they can be arrested for knowingly publishing illegally obtained trade secrets. The accuracy of the information, has nothing to do with it.
Then it certainly merits a serious answer. I would prefer you not to worship anything, but to consider cases like this on their merits. Consider the general principles, but also think about the implications of those principles in the specific case, particularly where there are apparent conflicts between two ideas that each have some merit in isolation.
In this case, please consider the following. The law as it stands today would clearly condemn someone violating a NDA to which they agreed prior to being told a trade secret. Thus the law takes the position that allowing the enforcement of NDAs is in the interests of society.
However, if this case is successfully defended then the law provides no sanction against someone taking advantage of information that they could reasonably expect was obtained through illegal means. Now the law is taking the position that it's not important to protect that information in the first place. The two positions are inherently contradictory.
Moreover, the second position supports knowing violation of the intended protections of the law, as long as you get someone else to do your dirty work for you. It places anyone with sufficient isolation above the law, no matter that they might ultimately be the cause of any damage and/or be the only one capable of offering adequate compensation to the damaged party. Surely this is a dangerous idea.
In other words, if we accept that it is right to permit a freedom of the press style defence in this case, we have undermined the whole point of NDAs, and should remove any legal support for such agreements in the first place. Conversely, if we believe that NDAs have merit and should be given legal weight, we cannot logically accept a freedom of the press style defence here.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.
Why does every brilliant clodhopper bring out the fire in a movie theatre trope as if to justify an annulment of free speech? I did not realize Justice Oliver Wendell Holmes was the last word regarding the Constitution.
:) argument as to why free speech should be restricted. Your pretense is the boy who cried wolf taken to absurd subversion.
But since you brought it up, Justice Holmes used the test of a clear and present danger in relation to the quote. Absolutely nothing applies in this present circumstance, so why even bring it up?
Further, the quote was from a case (Schenck v. United States) in which Schenck proclaimed people should resist the draft. Horror of horrors! That constitutes a clear and present danger? Why not use McCarthyism to justify throwing F/OSS programmer in jail? Oh wait, because it would be absurd and you would lose all credibility. Given the context of the quote, it amounts to about the same. It has the moral solvency of a sloppy wet shit (which you seem to equate with law).
"Congress shall make no law". No subsection that says, "Well, unless the Supreme Court says so". Nothing that states, "Unless there is a danger to the public". Nothing regarding pornography, and certainly not a goddamn thing that relates to an NDA.
As the media itself as taken to fear mongering, I defy anyone to make a coherent (yeah, so I'm not that coherent myself
You have no case.
So the fact that Novak outed Valery Plaime as a CIA operative even though it's specifically illegal to do so means that he should be prosecuted?
Legally, it is my understanding that is the case. When the people in charge of enforcing the law, however, have a vested interest in not seeing a violation prosecuted, there is little hope that anything will happen. Both Bush and Ashcroft are obviously guilty of misappropriating funds and spending them in ways specifically forbidden by law. I don't expect either will be inside a courtroom anytime soon. In the Apple case, they have money and lawyers and their is no conflict with the administrations agenda, so I expect the law may actually be enforced if it comes to that. Apple does not seem too interested in prosecution though, only in subpoenaing the name of the leak, so that they can fire his ass. I'd probably do the same.
I have no definitive answer as to what the Bill of Rights meant by the term "press," but I'm happy to take an educated guess.
At the time of the United States's founding, the journalistic landscape wasn't what we've had for most of the 19th and all of the 20th century: namely, media dominated by major newspapers. There were many, many individual owners of printing presses.
These printers (and Benjamin Franklin was one) handled the various printing needs of their towns. They also usually printed newsletters relating local events, political issues, weather forecasts, farming tips, and so forth. In addition to these newsletters, they printed political pamphlets, including Common Sense and the Federalist Papers.
The situation then was much closer to the blogs, e-mail newsletters, and Web forums we have today.
I think, from a constitutional standpoint, you could definitely argue that blogs -- and other Internet goodness -- are in no way second-class journalistic entitites, but instead have the same rights afforded to the New York Times, et. al. They are the modern versions of the Colonial and Revolutionary press.
quiquid id est, timeo puellas et oscula dantes.
okay - it was wrong for this information to get out - you have to respect companies privacy in these matters. But apple should take care of this inside their doors - not by trying to go against the constitution in the name of intellectual property.
People, before all the rabid anti-Apple fanboyz start harping on mean, evil, ennemy Apple, you should think about what happened here: basically, that someone defused Apple's planned surprise announcement, that someone lessened the mediatic impact of what would have been a mediatic bomb.
/. crowd, they just don't know that there is life besides Micro$oft. For them, there is only HotMail, MSN, Word+Excel and so forth. Most of you guys around here don't beleive me, so I tell you: go outside in the "big blue room" and talk to people. You'll be scared by what you find. I know I was when it sunk in last year. How could this be possible, if *I* hear of it, everyone should have know about it, no? (Not really.)
So Apple wanted to make a big splash, a big enough one to get noticed by the unwashed masses. Why, you ask? Don't everyone know about Apple? What's the problem?
The problem is that everything, everyone that is not Micro$oft has a big problem with understanding and awareness. Especially awareness. People that should know better (engineers, technical managers, etc.) don't even know about FireFox, Mozilla, Opera and other alternatives to MSIE. Really. Nor do they know about OpenOffice. If we are lucky, they barely remember WordPerfect. And they don't know about Apple Computer. Your average people is not the average
Though, right now, there seems to be two exceptions to this: Sony's Playstation (there is more than just the X-Box for gaming consoles)... and Apple's iPod. Because of its wildly successful portable media player, Apple is seeing people going to its website and discovering that they make computers, too. But the raising awareness of the fact that Apple also makes computers is not widespread. It is still a minority that knows about it.
(Again, it is also a small minority that knows that there are other browsers than MSIE... or media players other than WMP.)
So, how could Apple go beyond a minority of the techno-cogniscenti (sp?) and reach the masses?
The proverbial six o'clock news.
And how to get on said mass media, non-technical news? Make a surprise announcement, something big. Really big.
And this applies to more than just Apple. The Mozilla foundation and the rest of the Free Software movement could use more media exposure. And no, Wired does not cut it.
But if some irresponsible website operator leaks the news and limits its impact to the tech news sites, the surprise effect will be muted enough not to make it to the average, non-technical mass media.
I like rumours like the next guy, and I don't mind the occasional leak. But what ThinkSecret did was downright irresponsible, they did not care of the big picture, they only thought of how many pagehits they could get. They could have simply said "Apple will introduce a lower cost Mac" and essentially leave it at that.
For what they did, I'm sort of feeling that they should be nailed to the wall, because they helped Micro$oft more than helped Apple, IMO.
That's untrue. You are not obligated by law to report a crime you have witnessed. At least not in the country relevant to this discussion.
It would be a screwed up world if it were otherwise, don't you think? Rape victims could be thrown in jail for failing to report being raped. Or, suppose 100 people all witness a crime in public -- must they all report it officially? It would be crazy.
Anyway, I think that 1) The journalist should not be coerced into revealing his source, and 2) Whoever it was is in for a shit-ton of trouble if/when he is discovered.
I hope the person gets busted eventually, but not if it means sacrificing the ability of journalists to keep their sources confidential.
When the original person signs the NDA, they are entering into a LEGAL contract with the company. They do this voluntarily. This contract is enforced with the help of the government.
How is a company corrupt because it expects its own employees to keep the company's secrets?
Take off the tinfoil hat - the person that spoke to the journalist broke a contract that the person entered into. Apple is asking the court system to do exactly what the court system was put into place to do - enforce contracts signed into by two parties.
If the employee did not agree with the agreement to keep quiet, they should have never signed into the contract.
Or are you suggesting that it should be illegal for companies to expect their employees to keep quiet about [entirely legal] confidential company information? If that is your suggestion, I want you to think long and hard about the ramifications of such a decision.
Or are you going as far as to say that contracts should be made illegal? If so, the cross-cultural impact of that would be staggering. Forget property rights, and a company might just not pay you for work you have done.
Or are you suggesting that the government should limit me to what sort of contracts I can sign? That sounds a lot like the arguments made against gay marriage. No, if two legally-able parties want to sign into a contract, I am not sure the government should step in and say that two parties cannot agree to it (within reason).
Or are you suggesting that the government should not help enforce contracts? Does that mean then that private businesses should take it upon themselves to become their own bill collectors when a debt is overdue? That sounds a lot like mafia-style culture. Surely we are more civilized than that?
You just seem to want to jump on the "corporations are bad, and they are paying off the government" bandwagon, without anything really backing you up.
- (c) 2018 Hank Zimmerman
One of two things will happen with this.
If UTSA violates the first amendment, then Nick De Plume is off the hook, and Apple will not really be able to enforce NDAs except perhaps by more spying on its employees, planting false info, etc. Apple will either want to become more hard on people internally, or else re-think their policies and become more open about what they are working on. I think this outcome is bad for Apple, good for free speech.
If UTSA is constitutional, then Nick De Plume can be criminally prosecuted and potentially go to jail. He will have to give up his sources who will be fired from Apple. Apple will be better off because they can be relatively open with their employees and basically say "We will punish those who mistreat confidential information, but we can let you know those things you need to know in order to do your job and those who are doing the right thing are not under suspicion. We don't need to spy on you." Plus, I think that would pretty much put an end to the rumor sites. I consider that to be good for Apple and good for "the Mac community".
On the other hand, I think that outcome while good for Apple and the majority of its employees who are not violating their NDAs, is bad for America as a whole. I can't see how this type of ruling would not prevent companies or government bodies from silencing anyone who wants to speak out against any kind of wrongdoing. I can easily imagine the Bush administration or some corporations using these laws to punish whistle blowers.
Avoid Missing Ball for High Score
Yes it was painful, yes it was scarring. But... coffee is hot. Really, really hot.
The plaintiff in the case was able to convince the jury that coffee kept at a temperature that can cause 3rd degree burns is negligent. They presented evidence that McD's kept its coffee hotter than any other nationwide coffee provider, knew that had caused severe burns and did nothing about it, because keeping the coffee hotter allowed them to stretch the life of a pot of coffee. McD's lamely tried to defend themselves by saying their customers wanted the coffee that hot.
Anecdotally, having worked at a Dunkin' Donuts, and having spilled a lot of coffee on myself, I can say that I never recieved 3rd, or even 2nd degree burns from it.
That's why the lawsuit was petty.
Says you, but you weren't on the jury.
It is indeed. Suppose the cops know you're guilty but can't prove it, so they plant evidence. Are you saying that's okay? The guy's guilty, he has to be busted! Or what if a suspect is tortured until he confesses? What if the cops illegally search a house and find a joint? The owner is clearly a lawbreaker, so damn those technical restrictions, convict at all costs!
For most people it's far more important to maintain the ideals of the system than it is to catch absolutely every single last crook.
I guess you would impede a gov't investigation into catching a murderer if you could right?
Don't be obtuse. I'm not a journalist who promised somebody to maintain his confidentiality.
What if that person killed (god forbid) was your mother - would you think so highly of a journalist preventing the capture of the killer?
Probably not. This argument is also used against people who are anti death penalty. It goes like this: "If it happened to you you'd suddenly see things our way." But it's not relevant. If it happened to me, I'd no longer be unbiased.
So I admit it, if somebody killed my mother and a journalist was keeping it a secret, I'd be plenty pissed. I'd probably want him to reveal the source. And I would be 100% wrong.
I think journalistic sources should be protected except when the sources are committing a crime (civil or criminal). Why do we have to make blanket laws - why can't things be handled on a case by case basis.Because of how it LOOKS. If sources don't know for certain, I mean 100% certain, that they will be protected, they will not come forward. What if a source is not sure whether he's done something wrong or not? If he might end up in trouble, he'll probably decide to err on the side of not coming forward.
For most people it just isn't good enough to say, "I'll try to keep this secret, but I'm not absolutely sure I can, it depends on many factors, really, it's very complicated, but will you please give me the story?"
As for corporations silencing people, that's a slightly more valid concern, but there are also laws that protect whistleblowers, and I don't believe a corporation can consider the fact that it's engaging in illegal or unethical behavior to be a "trade secret" either.
Don't blame me; I'm never given mod points.
Idle speculation is not a proven track record of nearly perfect guesses while soliciting tips from insider sources.
T Money
World Domination with a plastic spoon since 1984
A person is acting in a journalist capacity when they provide non fiction information about contemporary events to an audience. Those are the criteria.
> In this case, although I'd hope that Apple would
> realize that they benefit from this type of
> interest ('reporting) in the platform, Apple is
> fully within thier rights. But I will say, with
> such rumor sites to see what's coming down the
> pipe, I might have left the Mac platform to the
> wind.
While I agree that it may help in some of the hype of the Apple and Mac brands, the primary concern is the stock price. Early release of information allows for competitors to rally against them, market their own products in force, and generally decrease the hype that Apple would have generated in its controlled manner at the time of release. The problem is that the stock of the company (ie. the public value of the company) suffers by leaks of information before they are ready for production and final announcement.
While this helped me in buying up some stock at a slightly lower price than I could have otherwise, it still is wrong. At first, I was kind of against Apple on this, and thought they should just let it go. However, in rethinking it (especially as a share holder), Apple needs to find that leak and plug it. They have a "spy" in their midst and needs to get rid of them. This may be internal, a vendor employee they contract with, whatever... but its a risk to their business to have someone who has no issues with violating their NDA.
Just my $0.02.