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.

Comments

This is not about journalism or blogging

[jarich]

It's about a company protecting their secrets from being rebroadcast on a world-wide medium.

It's not about journalism or blogging.

Re:This is not about journalism or blogging

[Skye16]

Wrong, it's about both. It doesn't have to be one or the other. It's obvious you think that protecting secrets is of more import than speech, but don't be so dishonest as to say "it has nothing to do with journalism or blogging".

I'm not saying you're wrong that protecting secrets is more important than free speech (and I'm also not saying you're right). I'm just saying "be honest about the situation or don't open your mouth". It's completely irresponsible of you to do otherwise.

Re:This is not about journalism or blogging

[johansalk]

You're both wrong. It's not about secrets, blogging, journalism, or free speech. It's about breaking conctractual agreements, and "contracts are promises that the law will enforce".

Re:This is not about journalism or blogging

[cowscows]

Novak isn't getting off the hook because of first amendment rights. He's getting a free pass because he's a mouthpiece for the current government administration. There are other people involved in that case who are having a very rough time with it.

Good, otherwise all NDAs are pointless

[varmittang]

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.

Dangerous precedent

[coder.keitaro]

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.

Re:Dangerous precedent

[Sentry21]

We already have people to decide who is and is not a journalist - for example, the Canadian Association of Journalists, the International Federation of Journalists, and so on. This is how real journalists get press passes, by the way - they join the associations, which check their credentials, and issue passes.

I doubt this 'blogger' is a member of any professional journalism organizations. I doubt they have any formal training, or indeed any training whatsoever. I'm curious as to how 'journalism' can be confused with some guy writing something and distributing it to the masses. If I print flyers and distribute them on the street corner, am I a journalist? No. If I tape posters to streetlamps and hydro poles, am I a journalist? No.

Journalism is a profession that requires both skill and responsibility. To call bloggers 'journalists' is akin to calling an MCSE an 'engineer'. The word is far from the truth, and if being called a journalist requires nothing more than a voice, then the single most important career possible in an open and democratic society suddenly means nothing. When a loud voice and a sense of self-righteousness can be considered equal to understanding of ethics, unbiased reporting, and facility with the language, then 'journalism' is suddenly just a word, and all the respect it once deserved is lost forever.

These people are not journalists, they are not reporters, and they are not worthy of anyone's respect. They are helping someone who broke an NDA escape due process, something that I doubt any good journalist would be willing to do - but then, any good journalist wouldn't have posted the details in the first place.

This is not a free speech issue. This is a legal issue. Someone signed a contract saying they would not disclose the information they learned, and then they broke that contract. No one is speaking as to the blogger's right to post, they are only speaking as to the source's right to leak, which does not exist. This has nothing to do with rights and everything to do with contractual obligation, and the person who leaked this information should be revealed, as they can not and should not be trusted with sensitive information by any company, ever again.

Here's an example to put this into perspective: my company deals with a lot of personal information for thousands of clients. Do I want to hire someone who has, in the past, broken their contractual obligations? Do I want them leaking the spending habits of important clients to the press, putting my company and my business in danger?

Slashdotters are always talking about privacy issues, but the only things stopping me from leaking the (very) personal details of thousands of people onto the internet is my sense of ethics and an NDA. This person obviously does not have a sense of ethics, and if an NDA is worthless when hidden behind an 'anonymous tip', then you can all kiss your privacy goodbye.

Re:Bad news for Apple

[adzoox]

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)

Re:Journalists' Sources, are, of course, Protected

[ignipotentis]

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.

Re:Journalists' Sources, are, of course, Protected

[LurkerXXX]

Nope. When a journalist gets secret information and tries to protect the source, it's usually for the reason that it's information the public has a right, or neeed to know. Someone is doing something underhanded, etc, that the public should know about and have the right to correct or to react to. It's done for the public good.

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.

Hmmm...

[BrokenHalo]

There is no question here of the blogger in question "obstructing justice". Seems to me that Apple is guilty here of some fairly heavy-handed treatment, given that the blogger in question is essentially just passing on rumours, which is pretty much stock in trade for any journalist, whether "legitimate" (by whatever legal definition applies) or not.

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.

Re:Hmmm...

[avronius]

Each company that hires me requests that I sign a non-disclosure agreement (standard for IT consulting here in Canada).

If I 'leak' confidential data, I am breaking that contract, and subject to various penalties, including, but not limited to, termination of employment, legal action, etc.

Apple employees in California are likely in the same boat. They (likely) sign non-disclosure agreements at the time of hiring. I can't imagine this being waived, as secrecy is quite important for Apple.

If I were in charge of anything at Apple, I'd want to know which of my employees had broken their word, their contract, and the law, for a moment of fame. I may not agree with the way that they are going about it, but if they worked for me, I'd want to know who it was too.

They'd be out on the street before the ink was dry on the pink slips...

Appeal & refuse to comply. What's news?

[Sean Clifford]

It ain't over yet. In the interim, I'm sure there will be an appeal and nobody will be forced to reveal anything until the appeal is decided. The judge is still hearing from Apple and the EFF.

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?

Re:Appeal & refuse to comply. What's news?

[cowscows]

Slashdot is not much of a news agency. It's more of a community, one that is spurred into discussion via news aggregation. Except for the occasional interview, /. editors put very little effort into creating content, they don't research, they don't break stories, they don't fact-check.

National Security is not the only reason that something should be held secret. Private information, whether it belongs to a person or a corporation should generally be considered private, especially when ones source is of questionable legality.

For an only partly applicable analogy (a better one doesn't come to mind), the patterns on my underwear is not a matter of national security, but it's not really anyone's business either. I don't care for the whole world to know about it. But if you decide you want to write a story about it, how you get your information is a pretty significant part of your job. If you ask me, or maybe my girlfriend, and one of us cough up the info, then fine, run with it. If you're courting people who you think may have broken into my house and rifled through my dresser, well, that's a bit sketchy. And when I read the article you published, and realize you probably know who it was that broke into my house and went through all my stuff, I'd expect you to tell me who it was. Otherwise you're basically aiding a criminal.

Now in Apple's case, it's a little different, but someone broke an NDA, a legal-contract that they willingly signed, and Apple wants to know who it is so that they can take actions against them that they feel appropriate. ThinkSecret can play dumb all they want, but with as long as they've been around, they understood that they were soliciting information that they're only going to receive if someone breaks an NDA. By not giving up their sources, they're helping someone who broke the law get away with it. I don't understand how that is defensible.

Re:Journalists' Sources, are, of course, Protected

[mshiltonj]

...but are these "three online publishers" journalists?

I'll vote 'No.'

Bullshit. What is a journalist? ANYBODY can be journalist.

Re:If Microsoft is a Virus, Apple is a Tumor

[mj_1903]

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.

The point of all this

[HuguesT]

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?

This is pretty important

[Pac]

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.

Irrelvant issue

[2nd Post!]

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.

MOD PARENT UP! Now!

[rjung2k]

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...)

Re:A few things:

[mindstrm]

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.

It's not the judge...Apple is right in this case

[bonch]

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?).

Re:Apple, here is an easy solution.

[Anonymous Coward]

How exactly does a subpoena to reveal a criminal ammount to crucifixion?

Think Secret solicited NDA violators to leak information about upcoming Mac products, and got somebody to do so. Right there, they were violating California law, and Apple could have pressed charges, but they instead took the high road, and merely demanded the identity of the scofflaw who committed industrial espionage against their company be revealed, so they could purge him from their company.

The publisher of Think Secret chose to withold that name, in spite of having no legal (or moral) leg to stand on whatsoever.