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?"

Comments

UTSA and other considerations

[daveschroeder]

Funny how almost no story or commentary about this ever mentions that current, in-force US laws may have been broken in the publication of this information:

http://www.washingtonpost.com/wp-dyn/articles/A793 7-2005Jan13_2.html

But while lawsuits against online publications are rare, he said, the Uniform Trade Secrets Act, versions of which have been adopted by about 45 states, including California, prevents third parties from exposing information knowingly obtained from sources bound by confidentiality agreements.

"Just because you don't have a relationship with the company doesn't necessarily immunize you, if you publish what you reasonably should have known was a trade secret," [Andrew] Beckerman-Rodau[, who runs the intellectual property program at Boston's Suffolk University Law School] said. "The First Amendment has been asserted more and more against intellectual property rights, but it's not faring well. Most courts haven't accepted it."

Apple doesn't really care about these web sites. They care about finding out who within the company (or contractor, etc.) is continually leaking this extremely accurate information to web sites (such as Think Secret). And no, it's not information that's "known" elsewhere. Some of these sites have got very reliable moles, 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. Is it journalism and free speech when you violate laws 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 these sites "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.)

If Apple's goal is to find out who leaked this information - indeed, if it considers that information critical to its business - and there is a legal mechanism for perhaps recovering that information, is it not within its rights to file suit seeking that information, especially when criminal and/or civil laws pertinent to that very information may have been violated? You might THINK they should hire a private detective. You might THINK any laws prohibiting these sites from revealing such information are incorrect, immoral, or unjust. But those are subjects not relevant to the case at hand, unless, of course, you believe the EFF challenge is a fundamental challenge of these laws.

I'm not talking philosophy here, or whether or not government officials can/should leak to the press. This is not about the Seymour Hershes of the world and the Pentagon Papers. I'm talking about the legality of this particular case, which involves a corporate entity, not issues of "throwing reporters in jail" to "reveal sources". Note that under some conditions, journalists HAVE, in fact, violated the law, and have, properly, been thrown in jail. The concept of not revealing confidential sources isn't some high and mighty ethical concept; in fact, it's a rather selfish one: at some level, it ensures them more sources in the future. It makes them more effective as a journalist. Whether they've got lofty ideals or what have you is again irrelevant. 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, a

Re:UTSA and other considerations

[daveschroeder]

Wow, um, did you like, read my post or anything?

I'll repeat, just in case:

http://www.washingtonpost.com/wp-dyn/articles/A793 7-2005Jan13_2.html

But while lawsuits against online publications are rare, he said, the Uniform Trade Secrets Act, versions of which have been adopted by about 45 states, including California, prevents third parties from exposing information knowingly obtained from sources bound by confidentiality agreements. [i.e., an NDA]

"Just because you don't have a relationship with the company doesn't necessarily immunize you, if you publish what you reasonably should have known was a trade secret," [Andrew] Beckerman-Rodau[, who runs the intellectual property program at Boston's Suffolk University Law School] said. "The First Amendment has been asserted more and more against intellectual property rights, but it's not faring well. Most courts haven't accepted it."

Just because you don't agree with the UTSA doesn't make it disappear. It remains to be seen whether the UTSA can be legally asserted by Apple, as they haven't publicly commented on this case beyond saying "Apple's DNA is innovation", etc., but the fact of the matter is that a law may indeed have been broken in the publication of information reasonably known to have been protected by a confidentiality agreement, period.

Re:UTSA and other considerations

[garcia]

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?

Re:UTSA and other considerations

[MetaPhyzx]

No, but you can be sued for breaking one. It isn't as though the information being revealed showed Apple violated some law, which in spite of a NDA, authorities may want to know. If that were the case, of course the first amendment would apply.

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.

Re:UTSA and other considerations

[daveschroeder]

So do you, or do you not, fundamentally agree with the Uniform Trade Secrets Act, which "prevents third parties from exposing information knowingly obtained from sources bound by confidentiality agreements"?

Also, what constitutes a "journalist"? Anyone who has a web site? How is that defined? And yes, this is a serious question.

Re:UTSA and other considerations

[99BottlesOfBeerInMyF]

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.

Re:UTSA and other considerations

[YomikoReadman]

As you pointed out, the UTSA prohibits a third party from releasing information from a source they know to be bound by an NDA. However, the issue that you seem to either ignore or skirt over is whether or not this kid knew that the people giving him information were bound by an NDA. 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.

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.

Re:UTSA and other considerations

[Ironsides]

How can you trust someone that works at your company that won't even keep a secret over something as trivial as a product design, to keep a bigger secret?

If you can't trust someone on the little secrets, how can you trust them on the big secrets? How do you find out who is trustworthy if you can't even find out who is breaking your trust?

Apple is going to these journalists (who are encouraging people to break the NDS) because it is about the only way to find out who is leaking the information and breaking the NDA. A private investigation won't reveal anything simply due to the number of ways people could send in the information. The only way is to get the journalists to reveal it. Although, there is getting to be a mighty thin line between what some of these journalists are doing and "industrial espionage".

Re:UTSA and other considerations

[Short Circuit]

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."

Re:UTSA and other considerations

[daveschroeder]

No laws are broken but you can be sued using this contract.

Wrong. The Uniform Trade Secrets Act law(s) in various jurisdictions may have been broken. Sure, it may all revolve around civil and contractual issues, but that's somewhat irrelevant. The reason this law *exists* is to prevent people from skirting NDAs by simply leaking information to a 3rd party.

In this case Think Secret is a 4th party and is NOT subject to the NDA.

How do you figure Think Secret is a "4th" party? It is extremely likely that Think Secret is getting its information directly from people who are themselves bound by confidentiality agreements. How does that make them a 4th party?

This is an "Apple leaking info" problem.

Yes. And it still may violate statutes to disseminate the information that was obtained. That's what the legal system will determine, eh?

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...

That's one way to do it. And they may have even already done things along those lines. But there are laws that exist that may have been violated, which you're choosing to conveniently ignore.

Re:UTSA and other considerations

[Mr. Cancelled]

I won't go too deeply into your posting, except for to point out the following:

1. 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.
   
   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.
2. 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 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.
3. 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.
4. 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).

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.

Re:UTSA and other considerations

[daveschroeder]

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.

Re:UTSA and other considerations

[bigpat]

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.

Re:UTSA and other considerations

[daveschroeder]

I'll ask again.

What constitutes a "journalist"?

Anyone who publishes information on a web site?

They're trying to paint these people as "bloggers". What constitutes a "blog"? If I post information in a journal-like style in chronological order to a web page, does that automatically make me a "journalist", and exempt me from any legal requirements pertaining to, e.g., trade secrets?

Re:UTSA and other considerations

[singularity]

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.

Re:UTSA and other considerations

[99BottlesOfBeerInMyF]

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.

Re:UTSA and other considerations

[99BottlesOfBeerInMyF]

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.

Re:UTSA and other considerations

[99BottlesOfBeerInMyF]

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.

Re:UTSA and other considerations

[The Infamous Grimace]

When that "third party" is the Press, then the 1st Ammendment applies.

And who or what defines what "the Press" is? Anybody who can create a website? 'Nic dePlume' is only now 19 years old; he started the site when he was 13. What exactly are his credentials? And at what point did it change from a 'rumor' site to a 'news' site?

(tig)

Re:UTSA and other considerations

[diverman]

> 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.

Considering it's been 30 years...

[Short Circuit]

...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.

Re:Considering it's been 30 years...

[marsu_k]

Oh sure we do, it was Linda Lovelace.

Which carries more weight?

[Sorklin]

"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.

Tough decision

[kawika]

"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.

Re:Tough decision

[PornMaster]

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.

Simple

[Moby Cock]

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*

Re:Simple

[99BottlesOfBeerInMyF]

...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

How is it bullying the web site to sue them for the name of their source? All they are doing is seeking the culprit. They are not even trying to get money from or an injunction against the web site operator. He made money by selling ads on his site, while breaking the law and conspiring with another person who dishonorably broke their agreements. Now if this was exposing some danger to the public, or government conspiracy, then whistle blower laws would protect them. This is nothing more than very petty corporate espionage, for profit, and Apple is not even trying for monetary compensation. All they have asked for is the name of the person who leaked the info, so they can fire them for espionage and violating their NDA. I think Apple has gone out of their way to be accommodating to the press and their fan sites here.

Freedom of Press

[Naikrovek]

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.

*sigh*

[grasshoppa]

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.

The question is "harm"

[amichalo]

I do not believe in petty lawsuits over cigarettes that kill or McDonald's coffee that was too hot when spilt into the lap while driving. What I do believe in is accountability for one's action and that is where the issue truly lies.

Journalists live and die by the "tips" they get.

The question is the "harm" they can cause by releasing the information.

If a journalist gets a tip that the police are looking for a suspect, releases said tip, and the suspect evades capture by getting the heads up, then the Journalist has, wittingly or not, obstructed justice.

In this instance, wittingly or not, the journalist has revealed trade secrets.

Another example? How about embedded reporters disclosing their whereabouts while in a military operation overseas (hypotethically, of course this would never happen). They endanger the lives of service men and women as well as the operation, but don't even need a source - they (or their GPS) are the source.

Being a "journalist" doesn't give one free reign to break laws.

My vote is that those who disclose confidential (NDA protected) information to a Journalist are breaking the law (civil law vs. criminal law - can be fined but not incarcerated) and the Journalist can choose to use that information if they are willing to also stand before a civil court for their actions.

If they did not know the information was priviledged, then they can just turn over the source, and have that source answer for their actions.

Re:The question is "harm"

[Anonymous Coward]

I do not believe in petty lawsuits over cigarettes that kill or McDonald's coffee that was too hot when spilt into the lap while driving. What I do believe in is accountability for one's action and that is where the issue truly lies.

I'm glad you think Third Degree burns are petty.

Stella Liebeck, 79 years old, was sitting in the passenger seat of her grandson's car having purchased a cup of McDonald's coffee. After the car stopped, she tried to hold the cup securely between her knees while removing the lid. However, the cup tipped over, pouring scalding hot coffee onto her. She received third-degree burns over 16 percent of her body, necessitating hospitalization for eight days, whirlpool treatment for debridement of her wounds, skin grafting, scarring, and disability for more than two years. Morgan, The Recorder, September 30, 1994. Despite these extensive injuries, she offered to settle with McDonald's for $20,000. However, McDonald's refused to settle. The jury awarded Liebeck $200,000 in compensatory damages -- reduced to $160,000 because the jury found her 20 percent at fault -- and $2.7 million in punitive damages for McDonald's callous conduct. (To put this in perspective, McDonald's revenue from coffee sales alone is in excess of $1.3 million a day.) The trial judge reduced the punitive damages to $480,000. Subsequently, the parties entered a post-verdict settlement. According to Stella Liebeck's attorney, S. Reed Morgan, the jury heard the following evidence in the case:

http://www.centerjd.org/free/mythbusters-free/MB_m cdonalds.htm

Define "Journalists"

[RobotRunAmok]

Pajamahadeen "working" for some obscure web site?

White House plant in the Press Corps?

Unemployed Columbia J-School graduate?

MSNBC Web Jockey given too much control over content?

Me, You, here, "blogging" our opinions on an extremely popular web site?

Senile "anchor" person who looked sexy twenty years ago and hasn't written a news story in his/her life?

A perky Fox News Info-Babe?

An ex-SNL comedy writer hosting a radio show on an avowedly anti-right wing network?

The producer/writer for the ex-comedy writer's show?

Jon Stewart? Jon Stewart's producer?

Jayson Blair?

The guys who covered up for Jayson Blair?

Rush Limbaugh (currently billing himself as "America's Anchorman")?

The diligent, dutiful Editor-in-Chief of the local High School Newspaper?

Some guy from Al-Jazeera whose cousin is in Gitmo?

Armed Forces Radio?

It's 2005. "Journalism" means everything and everything. Define "journalist" for me and I'll tell ya whether his sources should be protected, laughed at, or locked up...

Re:Define "Journalists"

[gkuz]

You want a definition?

(6) "Professional journalist" shall mean one who, for gain or livelihood, is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public; such person shall be someone performing said function either as a regular employee or as one otherwise professionally affiliated for gain or livelihood with such medium of communication.

New York State Consolidated Laws, Article 7, Section 79-h (a) (6)

Re:That's easy

[blueZhift]

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! ;-)

/. overload

[SpongeBobLinuxPants]

eff = good
apple = good
rights = good

/. brain overload... can't decide... who to crack jokes at... need to read SCO article... fast!

NDA

[derbs]

So this information was probably leaked in breach of an NDA... my question is to any lawyers out there, is it illegal for a newspaper (or whatever) to print information that has knowingly been obtained from someone in breach of an NDA?

Free Speech? Freedom of the Press?

[Marc2k]

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.

The 1st protects you from the Government.

[Shivetya]

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.

I am an Apple fan but...

[EaterOfDog]

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.

But does the UTSA apply?

[Otto]

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.

It's very relevant

[Anonymous Brave Guy]

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.

Definition of Trade Secret Please

[Inhibit]

Would some kind lawyerly type please define what a "trade secret" is? To me, this seems kind of odd in that it was simply some marketing info on a new product that someone was tipped off on, not an internal process to produce something that Apple didn't want seeing the light of day.

What's the deal? I've seen "secret" photos and whatnot of covered cars on tracks before they come out.. seems that in other cases the manufacturer just keeps a tighter lid on it.

A Free Press

[mariox19]

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.

my opinion

[suezz]

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.

Re:Freedom of Speech != Freedom from Consequences

[pclminion]

If you see someone rob a store, you're obligated to say that you saw them rob a store, whether you want to or not.

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.

Re:legalaity

[pclminion]

Yea wonderful...the gov't needs roadblocks to prevent punishing people who knowingly break the law. Thats a wonderful piece of insight.

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?"

Why is the EFF getting involved?

[dr.badass]

Neither the BBC piece nor any of the comments I've seen indicate why the EFF is getting involved in what seems like a pretty simple trade secret case. So I went to the EFF and found out the real reason:

After initially threatening to subpoena reporters directly, Apple sent subpoenas to Nfox.com, the email provider for PowerPage publisher Jason O'Grady. By forcing Nfox to hand over O'Grady's email, Apple hopes to find out who told the journalist about an upcoming product code-named "Asteroid."

"Rather than confronting the issue of reporter's privilege head-on, Apple is going to this journalist's ISP for his emails," said EFF Staff Attorney Kurt Opsahl.

In its request for the protective order, EFF points out that reporter's privileges protect the anonymity of sources regardless of whether third parties hold a journalist's records.

Aha! Now that is something a bit different, and I'm glad the EFF isn't (as the story comment implies) saying that trade secrets shouldn't be protected, because that would stupid. Apple isn't wrong for protecting it's trade secrets, but I would agree that this "innovative" approach isn't fair.