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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
Yes there is, but if you had read the article you would have seen that the Judge did NOT consider these bloggers journalists. RTFA.
Journalists sources are most definitely NOT protected. Journalists do not have a legal right to obstruct justice.
It's been a long standing tradition, but there is no federal law concerning it. This has all been explained due to the outing of a CIA operative by a republican schill.
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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I think you are referring to the shield law, but that applies to criminal and federal cases where the journalist can prove he may be at harm or be casued damaged if they reveal sources (even then - it doesn't apply to federal cases)
The law that does apply here is the UTSA - Uniform Trade Secrets Act - it specifically says you cannot report or disseminate information you know or can easily research and know is trade secret.
Really, copyright law applies here too - Think Secret was posting copyrighted/Patented information (that was not yet available at USPTO.GOV)
Yell & scream & rant & rave... it's no use... you need a shaaaave ~ Bugs Bunny
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!
There is. However, there is a caveat that precludes them from publishing things that are trade secrets are should reasonably know are trade secrets. Such disclosure can require them to reveal sources. This is not a Deep Throat type scenario. The guy should have known not to publish what he did.
Having said that, I want to clear something up. Did he simply report on the specs of soon to be released hardware? Was it that simple? If so, I am not sure the ought-to-have-known-these-are-trade-secrets argument holds water. If the machines were about to be released, their specs would shortly become public domain.
Can anyone clarify?
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
Microsoft wants to infiltrate every device bigger than a toothbrush, agreed. But how much worse would it be if Apple took over? (I realize this is verging way out into hypothetical land.) In Bizzarro Apple Land, only rich, Blaupunkt-owning, BMW-driving hipsters would be allowed to compute. Your Mac could be taken away by armed fashionistas roaming the streets. Every PC would cost at least $5,000 and developers would be expected to grovel for the supreme privilege of creating apps for the One True Operating System. Businesses in non-sexy segments would be denied licenses, and instead use elaborate abaci manned by legions of idiot savants.
At least, that's what Mistress Cleo says.
Ok, I'll talk. I got a call from a guy who said his name was Steve Jobs, and he told me all this stuff. He sent me an email (see, the "From:" line says "SteveJobs@apple.com"!) with the pictures and stuff. I figured he should know, right? What? The headers say the email comes from an anonymizer in the Netherlands? Sorry, I don't know what that means.
Can You Say Linux? I Knew That You Could.
The article didn't state it explicitly, but I was wondering if maybe they overheard the information.
I remember when I worked at Intel in Portland, there was a bar and grill called the Cornelius Pass Roadhouse that everyone visited after work('Today's been a killer, I need CPR'). Journalists from Wired would hang out in adjacent tables and take notes as the chip designers gave away the entire roadmap without knowing a single name.
"Who are you?" "No one of consequence." "I must know." "Get used to disappointment."
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!
The news came as a letdown for those running ThinkSecret, but their spirits were picked up when Apple served their final notice on nice metallic gray paper, in a design that could only be called "compact, simple, elegant, and effective."
The Peanut Gallery, Ubergeek, Biblically Sober
NCAAbbs.com: Thousands of fans, Hundreds of teams, Just one place
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.
- 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.
- This is not about "freedom of the press". You are free to publish (ie: the government can't sell publishing licenses), but you are still responsible for your actions, just as with speech.
- There is a federal trade secrets act that says publishers can be found liable if they knew, or should have known, that information was a trade-secret being leaked.
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
The case is in California. I don't think New York State Consolidated Laws apply there. On the other hand, California has a Shield Law that provides persons connected with news organizations with an immunity from being held in contempt "for refusing to disclose the source of any information procured while so connected or employed for [public dissemination]... or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.", that may or may not apply.
1) This is not a Federal case
2) This is being tried in California
3) California has an specific law protecting journalists from this kind of thing, the Shield law:
"California enacted a shield law in 1935 and, in 1980, incorporated it into the state constitution. The shield law protects a journalist from being held in contempt of court for refusing to disclose either unpublished information or the source of any information that was gathered for news purposes, whether the source is confidential or not. An exception can arise where a criminal defendant's federal constitutional right to a fair trial would be violated without a reporter's testimony."
I don't know if it aplies to this case, but the law exists.
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
One does not have to have a printing press, or a press pass to be journalist.
True.
These three publishers have no agreement with apple computers, and are not bound by any promise by others who have made promises to apple.
True.
If a judge said to you, "change your vote, or go to jail." Would you?
What the hell are you talking about?
This case is simple. The law says it is illegal to publish information you have reason to suspect is a trade secret. These journalists did. Apple sued them for the name of the person who gave them the info. There is no federal law to protect sources. Applicable state laws only protect sources if the story exposes government corruption, organized crime, or public health issues. This is a very good thing. The journalists are guilty and Apple deserves to know the source so they can fire him or her.
Let me present a hypothetical situation. I have a great deal of stock in a company and I'm a journalist. I find a source at a company that competes with the company I own stock in. I pay them to give me all their computer passwords and bank account numbers, then publish them on the front page. Their stock tanks, the company I invested in goes up, I make a bundle. If there was a blanket protection for journalists and sources I'd not only be free from prosecution, but there would be no way to stop me from doing it again and again.
I'm all in favor of protecting whistle blowers who expose corruption, crime, and public health issues, but this is a case of none of the above. This was publishing trade secrets for profit. Apple is being nice and only asking for a name instead of damages.
I'm not an Apple fan by any measure, but I wouldn't feel ashamed at all. Here's my take on it:
Apple has internal secrets about what they're going to do as a company. One of their own, violating a documented promise (signed contract), is leaking these secrets, permitting them to fall into the hands of the competition. They are leaking these secrets for personal gain and/or to damage Apple.
Apple wants to identify and stop this person. However, those who know who this person is, and those who willingly distributed these secrets, are not talking under the guise of "journalistic freedom".
The person publishing the information is simply protecting their personal business model. These "rumor" sites make a lot of money though advertising - and stopping the free flow of trade secrets - their business - will hurt their substantial income.
This isn't about journalistic freedom, and this isn't about keeping America free. It's about the buying and selling of trade secrets in order to make money.
These sites are all about making money, and their most profitable products are Apple's trade secrets.
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?).
Hi --
I just wanted to point out that the San Jose Merc news article that's linked is not about Apple's lawsuit against Think Secret. It's referring to a separate suit against "John Does," as part of which three sites, including Think Secret, received subpoenas. They're completely different suits.
Nick dePlume
Publisher and Editor in Chief
Think Secret
Would you prefer a "journalism" license thats issued by the federal government? I'm sure the White House would.
Who says the White House would get a say in the matter? There are lots of ways of certifying journalists that don't involve the government at all.
And it's not as if our current system is any great shakes, either -- Just look at how much news coverage Michael Jackson is getting over Jeff Gannon, for Pete's sake. Or the recently-outed group of "independent" commentators who were actually paid shills of the Administration. Hell, the fact that Michael Moore produced more Iraq war revelations in Fahrenheit 9/11 than ABC, CBS, NBC, and Fox combined tells you how totally eff'ed up American journalism is already.
--R.J.
Electric-Escape.net
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.
Some clarification:
This ruling wasn't on the Think Secret lawsuit, which is a separate but related case. In this case, Apple wants to subpoena two Mac news sites, and the ISP of one of the sites for information to help them track down who leaked the information.
In the Think Secret matter, Apple is suing the actual publisher because the believe that he contributed to the theft of trade secrets because he actively solicits such leaks on his website. Whether Power Page or Apple Insider have similar solicitations, I don't know, but they're not getting sued, they're getting subpoenaed.
[rant]It's becoming typical of slashdot editors to skip over important details and post articles that contain sloppy writing and sloppy thinking.[/rant]
Whether this is leak was harmful to Apple is not as cut-and-dried as you make it out to be. Remember, it's not just the consumer that now has access to this information, but Apple's competitors. I think Apple can fairly make the claim that this is very harmful to their business, though it would be up to a court to decide that matter.
As to Apple going after the publisher or reporter of the story, the freedom of the press issues, and the California shield law, keep in mind that such laws are based on balancing the public interest and the public right to know against private interests, privacy, and trade secrets. Shield laws were to designed to protect whistleblowers. If Apple had been committing accounting fraud, or some such scandalous behavior, and an employee leaked the information to one of these sites, then the California shield law could appropriately be applied.
One last detail. It is possible that the leaker(s) is not an Apple employee, but a consultant or contractor, or an employee of a contractor. I don't know if this matters much to the case at hand, since outsiders granted such information almost always have to sign an NDA as well.
BTW, I'm not picking on you, you just seemed a little unclear on the subject, like many other slashdotters posting here. I chose to reply to your post because you seem reasonable and coherent and I'm a long time (since 1975 at least) Led Zep fan.
It's not offtopic, dumbass. It's orthogonal.