Slashdot Mirror
Judge Finds For Apple in ThinkSecret Case
An anonymous reader writes: "In a case with implications for the freedom to blog, a San Jose judge tentatively ruled Thursday that Apple Computer can force three online publishers to surrender the names of confidential sources who disclosed information about the company's upcoming products. The San Jose news piece has the most detail on the ruling while Mac Daily News has some background on the case, and Gizmodo vociferously expresses an opinion on the lawsuit. We've covered the case in the past as well.
It's not about journalism or blogging.
Agile Artisans
Santa Clara County Superior Court Judge James Kleinberg refused to extend to the Web sites a protection that shields journalists from revealing the names of unidentified sources or turning over unpublished material.
and...
Thomas Goldstein, a former dean of the Columbia University Graduate School of Journalism who worked as a reporter for the New York Times, filed a brief in support of the Web sites. "Just because Apple does not want these publications to report on its activities does not mean that they are not news publications," Goldstein wrote.
This is setting a very dangerous precedent. If this holds up (through many appeals, unless I miss my guess), then what's to differentiate between CNN and CNN.com? Just because it's on the web means it's not journalism?
Specialization is for insects. -Heinlein
If they didn't win, then all NDAs are pointless because you could just put an anonymous post on some website and not get in trouble for it.
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such protections apply only to "legitimate members of the press."
So now we have the courts deciding who is and who is not a journalist? We have them deciding what is legitimate journalism and what is not?
This is the beginning of an "authorized" press with greater freedoms than for anyone who dares to publish outside of it.
It scares me a lot as it could easily be abused to restrict free speach online.
watashi wa bengoshi dewa arimasen!
Think Secret is NOT an Apple fan - in fact they often report negatively - partner with the resellers that are suing Apple - and do so at the expense of Apple buyers (stealing press thunder, building up expectations too high, and litigation/cease and decist concerns)
Yell & scream & rant & rave... it's no use... you need a shaaaave ~ Bugs Bunny
And Dan Rather is?
I'm about to reference a Daily Show here, but it still is a fact. Recently, CNN (along with other major "journalism" places) broadcast a story they claimed to be breaking when what they were really doing was reading someones blog.
Face it, If you can publish to the web, and report information which has been given to you/you find, you are a journalist. If you do not fact check and post everything you get, then you are a bad journalist, but still, a journalist.
Don't waste time... procrastinate now!
What makes someone a journalist? Is it circulation in the millions? Is it a press pass? Is it a crumpled fedora? These days any hack with a blog can wrap something in HTML, slap a google ad on it, and call it journalism. Does that make it so?
Does everything written to a wiki or a blog get full first amendment protection - not just your own free speech, but the ability to quote or reference facts from anonymous sources with impunity? That would be a great loophole, the Internet equivalent of "touching base" -- you caaan't get me.
As for these sites, IMO they were established news organizations, and likely deserve such protection given their reputation and audience. However, I consider it a matter of fact to be decided by the courts whether a given individual is afforded these protections, as they should never be automatic.
Matt Slot / Bitwise Operator / Ambrosia Software, Inc.
There is nothing about the release of Apple's internal plans that was 'for the public good'. The only good was for Apple's competitors. They could now see what Apple was planning and react to it.
These publishers and their sources should be hammered by the court IMHO.
I am aware that there is a large proportion of Mac fanboys here on Slashdot, but Apple's antics lately have borne a striking resemblance to some of those from Microsoft, and I see no particular reason why they should be applauded.
If forced, I'd refuse to comply. Yes, doing so will park you in jail. Blogs are publications and are often widely syndicated; they're often used as sources for major broadcast and dead tree news stories. ThinkSecret is as legitimate as the Talon; well, bad example on the latter.
Trade secrets are not national security. ThinkSecret and the other folks weren't trafficing in them (selling them to competitors) which would be industrial espionage; they were writing news articles about them.
Is The Register a legitimate news service? Is Tomshardware? Is Slashdot? Is Democracy Now? What about al-Jazeera? Fox News? Who gets to decide what constitutes a "legitimate" and an "illegitmate" news agency?
...but are these "three online publishers" journalists?
I'll vote 'No.'
Bullshit. What is a journalist? ANYBODY can be journalist.
Software Wars
In Bizzarro Apple Land, only rich, Blaupunkt-owning, BMW-driving hipsters would be allowed to compute
So like the target market of the Mac mini?
developers would be expected to grovel for the supreme privilege of creating apps for the One True Operating System
So those free developer tools?
Businesses in non-sexy segments would be denied licenses
So like super computing?
I think you are basing your ideas off the Apple of old run not by dreamers but by boring businessmen. Apple has and is changing and at quite a rapid rate. They want everyone to experience and enjoy their products, a quick look at the drop in prices of all their product lines would indicate that. Not to mention of course that Mac OS X is the most accessible operating system out there now, no funky 3D interface, not strange and bizarre "elite" windowing system just plain system Desktop metaphor with reasonable consistency for joe user.
"- There is no blanket shield law for journalists in the US. Nothing along the lines of doctor-patient or lawyer-client privelege. There are some laws for more specific cases, but nothing generic."
It's called the First Amendment.
This situation is simple. The judge believes trade law overrides the First amendment, as well as 200+ years of journalistic tradition.
This is becoming increasingly common. Americans don't understand and don't care about their civil rights. And when judges become so pro-business that the First becomes a null, we've gone over the top at last.
All the more sad that so many Bush judges are now on the bench. The current situation is only a precursor to the next fifty years of amazing new findings by rightist judges. The legal atmosphere will be unrecognizable to anyone freshly imported from the 20th century.
And I am ashamed, horrified that Apple, of all companies, is doing this. I'm reconsidering my future purchases of their products.
Getting scooped on your product launch is part of being a free society. Any NDA's one has with one's employees is NOT the journalist's problem. A major part of journalism (pre-Bushism) is the cultivation of secret sources that reveal things their bosses don't like revealed. And Thinksecret is a news outlet, in the Ben Franklin tradition. If a gay call boy can get a daily pass under a fake name to the White House FOR TWO YEARS to be an undercover shill, and not be charged, and Robert Novak can out a CIA agent along with an entire CIA front company to ruin a White House critic without being arrested for treason, a man can report on an Apple product without being ruined.
Obviously Apple is silly to be angry at ThinkSecret.
They can only be angry because TS reports are sufficiently accurate to be believable, and this can only happen if there is some kind of inside source close enough to Apple blowing the whistle.
What Apple really wants are the names of the whistleblowers, so they can be at least fired, if not slapped with a lawsuit themselves so that no further leak ever happens.
Unfortunately this will not work. At the very worst TS will be compelled to reveal their sources. They can only be found "guilty" of conveying a message. AFAIK TS have not signed any contract with Apple and are therefore breaking no law in publicizing what they know (or think they now).
If the TS sources were smart, they were anonymous, and therefore no data at all for Apple at the end of this rigmarole.
If the sources are not anonymous then Apple will indeed fire and sue a couple of guys, and promptly the next round of leaks (for leaks will not stop, indeed they will become hotter and more valuable each time Apple tries to squash them) will indeed be anonymous, encrypted, whatever. Apple will be back to square one only this time when they sue the next round of leak sites those people will be better armed to tell Apple to take a walk.
There is no way Apple will end up doing something productive about this business. In the meantime they are burying themselves into a nice PR hole.
Why don't everybody who think Apple is making a mistake tell that to Apple?
People should pay attention to what rabit Apple is trying to pull from the hat here. If you read the article,
"In its court filings, Apple argued that neither the free speech protections of the United States Constitution nor the California Shield Law, which protects journalists from revealing their sources, applies to the Web sites. The company said such protections apply only to 'legitimate members of the press.'"
So basically Apple is saying bloggers are not "legitimate members of the press" and the judge (tentatively, meaning it is a preliminary ruling) agreed. If this holds water, the consequences can be huge. Some questions will need new answers: Who is a legitimate member of the press? What is a "news organisation"? If an online presence is not enough to caractherize such an organisation, what is? A paper? A radio?
This a fine new front in the "us against them" battle for the Internet.
Why does it even matter that bloggers are or aren't journalists?
If they were, are they immune from subpoenas?
I don't think they are. Yes, they could refuse to talk. They could also be held in contempt of court AND thrown in jail, being material witnesses, or at least possessing material evidence, in knowing who leaked this information to them.
Yes, it is less critical than national security and treason; but it is still law, it is still a valid issue of trust and contracts.
GPL Deconstructed
I wish I had mod points, because the parent post needs to be staple-gunned to everyone's forehead.
Look, guys, I get a big hard-on for the Constitution of the United States, but I' getting sick and tired of all the critics following this case claiming that any sort of victory for Apple is a threat to free speech, or that there's no difference between ThinkSecret.com and CNN.com, yadda yadda yadda. Being a journalist is not just starting a web site and pronouncing yourself as one -- that's as meaningless as buying a box of bandages and starting a medical practice as Dr. Nick Riviera.
If anything, bloggers and "news sites" might be comparable to freelance op-ed writers, free to write whatever they want on whatever topic they want. That does not automatically give them the rights and privileges of journalists, just like being the webmaster of whitehousenews.org gives you instant access to the White House Press Pool.
(An exception, of course, is if you're a conservative shill using an alias and working for a fake news organization while moonlighting as a gay escort... but the Bush Administration clearly uses a looser set of ethics than the rest of us...)
--R.J.
Electric-Escape.net
The idea behind protecting a journalist's sources is so that people will talk to reporters in confidence, particularly about scandals that need to be exposed to public view, so that a journalist and his sources can be free to expose all the gory details without fear of legal retribution. That's all very laudable.
This is somewhat different. Here the leak itself is the scandal. Some guy is breaking his NDA for some unknown reason - fame, revenge, to make himself feel good, whatever. For goodness sake, "Think Secret" was even soliciting people to talk to them about Apple's trade secrets. This case has nothing at all to do with protecting sources who are putting themselves at risk to expose a dark secret that the public needs to know about.
This isn't about protecting a journalist's sources. It's just greed. This guy is not a journalist, he's merely exposing other people's secrets to make money. Calling himself a journalist doesn't make it so. If a person can be labelled a journalist (with legal source protection) just by creating a web site containing trade secret information, then the legal protection for trade secrets exposed in this way is weakened considerably.
Again, the first ammendment protects the right to speak and publish, not the right to be immunte from responsibility for your actions.
Respectfully, if you view the constitution as absolute, and feel that any speech and any sort of publishing should be completely protected, I can see your point. That's not how things currently work, though, so is the topic for a different discussion.
Getting scooped on your product launch is being part of a free society, yes, but we are also a society of laws. What good are NDAs if employees merely have to drop a note to any journalist who is free to publish it, and never say who leaked it? Any sort of secrecy would become impossible.
Every type of protection has exceptions. You can't scream "fire" in a crowded room and claim freedom of speech. We have laws against slander and libel. You are free to speak, but responsible for your actions.
Soliciting someone to break the law is illegal. If the journalist knew that the source was breaking the law by telling him this, he has a moral and legal responsibility to society to behave correctly.
Contracts are a matter of law. Unless you claim the NDA was invalid or something (which you could do), this is fairly clear.
Now, if the greater public good were at stake, if this were about pollution or other threats to people's lives, or livelihood, I can see a need to protect, however, leaking confidential product releases isn't one of them.
This man wont be ruined, this man could simply give up his source.
Instead of crucifying a penniless web journalist, tie bonuses of the development staff to news leaks (or lack thereof). Give your employees a reason not to snitch on you.
Do you think that IBM would be reacting like this if news of a new Power5 server leaked?
Apple, you make interesting products, but I hesitate to buy from you as you so often act like a grade school playground bully.
Solve your problems with constructive action instead of trying to ruin peoples' lives.
From the article summary:
In a case with implications for the freedom to blog...
The implication to reveal trade secrets?
Believe it or not, you don't have the freedom to say absolutely anything you want. There are slander laws, libel laws, harrassment laws, trade secret protection laws, and so on. If I worked as a higher-up in Coca-Cola, I wouldn't be able to post the top secret Coke formula on my blog without expecting a lawsuit.
Apple is well within their rights in this case. Revealing upcoming products messes with the release schedule, gives competitors a heads-up, and basically screws things up for Apple.
And no, people, Woz is not contributing to the legal fund of this case. That is a a different case involving the Tiger torrent. I mention it because I've seen at least three posts pointlessly referencing Woz (as if that would matter anyway...because Woz disagrees, we all must as well?).
No. If you *know* something, you aren't *speculating.* To continue your wall street analogy, that's the difference between teh talking heads on CNBC and insider trading. If you have access to the information, it ain't speculation.
I keep wondering what precident Apple can site for having authority over the writing of non-employees. If I write in my blog that there's a new Apple product called the iPod Macro, and it turns out to be true, can they sue me?
Nope, but if you've claimed your source is an apple employee, they can *subpoena* you. Remember, this kid isn't being sued - he's being subpoenaed.
You've given away your bias there by writing "blogger/journalist". If you claim that this law truly extends to anyone writing on any web page, then you're effectively arguing that anyone who doesn't want to reveal who told them anything can simply write on a web page that someone did, and then use the shield law as an excuse not to tell the court. The scope for damage in giving legal weight to that argument is far greater than anything we're discussing here.
If you disagree, post your argument. (-1, Overrated) isn't your personal censorship tool for views you don't like.