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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.
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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*
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.
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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?
It also says nothing about the journalists not having to testify against sources.
The only person you have a right not to incriminate, constitutionally, is yourself. Of course, other exceptions (physician, priest, attorney) have become protected, as have in many cases journalists, but while they may have a fundamental right to publish the information, they don't have the right not to testify about a crime which was committed just because they have the right to publish.
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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
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.
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.
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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."
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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.
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
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.
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.