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Apple Agrees to Hold Off on Subpoenas
ido writes "Apple has agreed to hold off on serving subpoenas related to their John Doe civil suits against some free press journalists to reveal sources releasing Apple's "trade secrets." This is related to a previous article." The original story has some more background info as well. While Apple is notorious for its secrecy before MacWorlds, Apple probably figured out that dragging people into court usually does little for one's popularity.
While Apple is notorious for its secrecy before MacWorlds, Apple probably figured out that dragging people into court usually does little for one's popularity.
They probably caught the employee who was leaking.
"Newitz said that "Apple may have a case" in suing anonymous individuals for violations of the Uniform Trade Secrets Act (the Act holds liable those who receive trade secrets that were knowingly misappropriated), "but the issue is how they're getting the information." She said that Apple's actions are following a "tortured route" and that the company seems to be attempting to "beat these journalists with litigation."
The EFF's position is that the Web sites in question are viable journalistic endeavors, which places their writers under reporter shield laws, both at the federal and state level.
The federal shield law, which is based on the First Amendment, guarantees the "free flow of information" and allows reporters to assure sources that they will remain anonymous.
"There is a loophole--it's not that a reporter never has to give up information," Newitz said. "They can be forced to reveal sources only if every other source is exhausted." Newitz said that she felt Apple has not come close to examining other potential methods of identifying the parties who leaked confidential information; she said that to her knowledge, Apple has never performed or admitted to performing an internal investigation into NDA (nondisclosure agreement) violations.
The facts of this case are a bit more nuanced than I have seen discussed so far. Does the First Amendment protect a reporter's right to withhold identify his or her anonymous sources? Yes. There are times when a reporter is asked to break this bond, and we are seeing a current case over the probable felony that resulted from revealing Valerie Plame's CIA affiliation where the issues are much more serious than this Apple business. In this more serious case, a crime was committed, and a couple of levels of courts have ordered the reporters to identify their sources or else face contempt charges. The New York Times, among others, continues to fight this pressure to reveal anonymous sources so as to protect the precendent for future anonymous sources.
This Apple case is not nearly as important, and no court is going to go around ordering reporters to reveal Apple news sources the way they are with those associated with the White House who may have committed a felony. And not only is the Apple case involving less serious information, it seems Apple hasn't even done the basics first: Conduct thorough in-house investigation into which employee is doing the leaking. Even the EFF says that once Apple has done everything else, forcing a news source to report the identity of an anonymous source might be on the table, from the legal perspective.
So for now, Apple is backing down. But this is not the clear-cut case that we've seen. It may yet come down to the Apple news sites being asked to reveal their sources, for it may well be that some Apple employees are violating the terms of their employment. And that's what Apple is really trying to do: Find employees who are violating contract rules. But first they have to do everything else to find out this information before they think of asking a reporter to give up his or her information. But that could yet happen.