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

[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:Now correct me if im wrong...

[Arbin]

Yes there is, but if you had read the article you would have seen that the Judge did NOT consider these bloggers journalists. RTFA.

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

[Trigun]

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.

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.

Re:Good, otherwise all NDAs are pointless

[XP_sucks]

The NDA is a "confidentially " contract with whomever the company is disclosing the info to. It is not with the blog or website that that person leaks the info too. The leaker has violated the NDA, if there was one (or possibly his terms of employment) and is liable for doing so. This is completely seperate from the freedom of the press issues raised here, and more importantly the issue of online publications being somehow different that traditional media and thus not deserving of the same rights and protections. Apple is completely within its rights to go after the leakers, but should not be allowed to treat the blogs any different that say the New York Times.

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

[rokzy]

>It scares me a lot as it could easily be abused to restrict free speach online.

you can have it back when you learn to spell it*.

*and the answer isn't "I-T"

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:Dangerous precedent

[Caiwyn]

Nowhere in the constitution does it say that a member of the press cannot be required to divulge their sources, either. Once again, Slashdotters are lecturing others on the first amendment without, apparently, reading it themselves. The constitution says:

"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."

That is, Congress can't make a law denying the press the right to print information. Nowhere in the Constitution does it explicitly say anything about a reporter's ability to keep sources confidential in the face of a court subpoena. This is why 31 states feel the need to have shield laws that provide that very protection.

So ultimately, it will be California's shield law, not the U.S. Constitution, that determines whether or not the proprietors of the websites in question are part of the "press," and whether or not they can be forced to divulge sources. If you want to read up on the specifics, check out this site.

Uhh...

[macemoneta]

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.

Is it possible they don't know their source?

[Hussman32]

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.

Further reports...

[gt_swagger]

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."

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...

[ABaumann]

Apple sued to subpoena. They're not trying to make the guys broke. They're just trying to find out who leaked this information so that they can find the individual(s) that broke the NDA and fire them... out of a cannon ...into the sun.

You are wrong in a lot of ways

[Pac]

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.

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 Vote From the Heart?

[99BottlesOfBeerInMyF]

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.

This article is not about the Think Secret suit

[Nick dePlume]

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

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.

More Slashdot Inaccuracy

[Ohreally_factor]

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.