Newspapers Back Apple Bloggers

puke76 writes "Remember the bloggers being sued by Apple? Well now they've attracted the attention and support of some major newspapers. There's a story over at BBC. The newspapers are arguing that journalism sources should be protected. Can we blog without legal repercussions?" From the article: "Recent corporate scandals involving WorldCom, Enron and the tobacco industry all undoubtedly involved the reporting of information that the companies involved would have preferred to remain unknown to the public..."

Comments

Public Interest?

[TripMaster Monkey]

From the article:

Sources who give journalists details of corruption or wrongdoing are traditionally protected by law, if the story is in the public's interest.

Now, IANAL, granted, but I'm having a hard time understanding how leaking trade secrets about a company's upcoming product could be construed to be 'in the public's interest', and thus merit this sort of protection.

Also from the article:

"Recent corporate scandals involving WorldCom, Enron and the tobacco industry all undoubtedly involved the reporting of information that the companies involved would have preferred to remain unknown to the public," said the brief.

This is cute...likening Apple to WorldCom, Enron (trying to cover up massive accounting scandals), and the tobacco industry (trying to pretend they believe tobacco is not a deadly drug), to Apple (trying to protect its trade secrets and intellectual property).

Now, don't get me wrong...I'm all about the free speech...but this sort of thing simply doesn't deserve the same sort of protection that journalists receive. If it is granted that protection, then all legitimate journalism is weakened as a result, and we may ultimately see a decline in our right to free speech, rather than an increase.

Re:Public Interest?

[Sanity]

Now, don't get me wrong...I'm all about the free speech...but this sort of thing simply doesn't deserve the same sort of protection that journalists receive.

And who sits in judgement of what speech is and isn't worthy of protection? You perhaps? That isn't free speech.

Re:Public Interest?

[daveschroeder]

And who sits in judgement of what speech is and isn't worthy of protection? You perhaps? That isn't free speech.

What about speech that isn't protected now?

There has to be some arbiter.

And in your model, anyone could break their contractual agreements freely without fear of any discipline or reprisal simply by leaking to any web site.

Re:Public Interest?

[(54)T-Dub]

Speech is free as long as it doesn't infringe on someone else's rights. (IE: liable)

Re:Public Interest?

[nocomment]

When you say TradeSecret, I think you are referring to ThinkSecret. Also, ThinkSecret is NOT being sued. They were supeoned(sp?) to court to provide the source of the info, so the real leak could be sued. I actually agree with you that ThinkSecret IS a publication and IS deserving of of protection under the first amendment. Except that the journalist benefit is not absolute as the judge put it, and does not apply when a crime has been committed. In this particular case the guy the leaked the info commited a crime. Therefore is makes no difference if ThinkSecret is a journalism outlet (that's why the court spent so little time talking about that) because they'd still have to give up the info anyway. The court never even bothered to decide if ThinkSecret is a publication, because as I've said elsewhere, it doesn't make a difference if they are or aren't the end result is the same, give up the info.

Re:Public Interest?

[TGK]

No, the title of Journalist does not make one above the law.

At the same time, because the United States (likes to think that it) respects the freedom of the press, there are protections laid out for journalists.

Noteably, there exists a kind of confidentiality between a journalist and his sources. A similar confidentiality exists between a doctor and patients, and between a religious officials and their parishoners.

There exist some professions that rely on the trusted exchange of information between two individuals. We protect journalists because, were we to force them to give up sources, we would effectively silence any critical ideas. This is fundamentaly not what is meant by freedom of speech.

Sure, Apple has a case against the people that leaked information. It doesn't have any buisness trying to extricate their names from the blogers in question. What is told to a journalist remains in strictist confidance. The Pentagon Papers are a perfect example of why.

Re:Public Interest?

[daveschroeder]

Yes, but NOT the company in question!

Uh, it's not the company. It's the court that already decided that the web sites have to reveal the information.

They already do, doh! You could take some secrets of your company, go to a cybercafe, enter an anonimizing proxy and upload the data to your favorite website. All of this without getting caught.

Apple is still entitled to any and all information that relates to how the web sites came into this information. And if that means finding out that it was sent from a cafe in San Jose at 7:14 pm on Tuesday night, then that's all it is. But they're still entitled to it.

NO - It is the COMPANY's responsibility to ensure the data isn't leaked in the first place.

Yeah. And they do that, dumbass, by having their employees agree contractually in good faith to not leak their fucking information, and punishing them if they do!

And the Apple blogger in question didn't expose anything that would actually *harm* the company (like publishing some blueprints or source code). He just published A COUPLE OF ROUMORS, come on.

Um, no. He didn't. He published very specific information that was only known internally to LIMITED numbers of people within Apple. There were also artist renditions and specifications involved (re: Asteroid), and they also published clear and specific information about the Mac mini. Apple picked one thing, but they're concerned about all of it. And under the Uniform Trade Secrets Act, even journalists are not protected.

In other words, you're completely wrong, but nice try.

Re:Public Interest?

[Slack3r78]

Um, no. He didn't. He published very specific information that was only known internally to LIMITED numbers of people within Apple. There were also artist renditions and specifications involved (re: Asteroid), and they also published clear and specific information about the Mac mini.

In fact, if people could be bothered to read Judge Kleinberg's ruling, they'd find that at least one of the sites involved posted exact copies of presentation slides which were clearly watermarked "APPLE CONFIDENTIAL."

In other words, Apple had already made enough of a case regarding where this information had come from in order for the Judge to allow discovery to go forward.

Where does it stop?

[singularity]

I am an ardent backer of free journalism, but I see this case pushing a very fine line. Where does "journalism" stop and "somebody just writing something down" start?

Suppose someone writes a trade secret in an anonymous Slashdot story submission? In an anonymous Slashdot comment? In a LiveJournal entry? In a Slashdot journal entry?

Should these all be protected under the guise of journalism?

The Internet blurs the line between professional journalism and amateur writing, which is one of the great things about the new levels of communication that is available to anyone able to get online.

This case can hold the precedence to start the "slippery slope" of protecting anything written online. While this might sound like a wonderful idea to the "Information wants to be free" crowd, I see it as being very dangerous.

This case is a bad test of the "bloggers as journalists" question anyway. Had a paper newspaper done the exact same thing, the law would not protect the paper either. ThinkSecret knowingly asked someone to disclose a trade secret, and then knowingly published this "secret" for no reason other than to publish it (and maybe reap some ad revenue).

Re:Where does it stop?

[XxtraLarGe]

There's nothing in the Constitution that says freedom of the press only applies to professionals.

Great

[daveschroeder]

Great

So now, in their world, all anyone has to do to knowingly break binding contractual confidentiality agreements that they have agreed to in good faith with their employers with no danger whatsoever of being caught, is simply by leaking it to a web site!

No secrets! Power to the people! Down with the the man!

And stuff.

* Cue slashdot chorus singing "That's the companies' problem and they should hire their own investigators to find the leaks" *

An interested public != public interest

Re:Great

[daveschroeder]

I can't take credit for it.

It was the judge in this case himself who said it.

Some other worthy observations by Santa Clara County Superior Court Judge James P. Kleinberg:

"Unlike the whistleblower who discloses a health, safety or welfare hazard affecting all, or the government employee who reveals mismanagement or worse by our public officials, [the enthusiast sites] are doing nothing more than feeding the public's insatiable desire for information.[1]

[...]

Defining what is a 'journalist' has become more complicated as the variety of media has expanded. But even if the movants are journalists, this is not the equivalent of a free pass.

[...]

The journalist's privilege is not absolute. For example, journalists cannot refuse to disclose information when it relates to a crime.

[...]

[The information about Apple's unreleased products] is stolen property, just as any physical item, such as a laptop computer containing the same information on its hard drive [or not] would be. The bottom line is there is no exception or exemption in either the [Uniform Trade Secrets Act] or the Penal Code for journalists--however defined--or anyone else.

[...]

The public has had, and continues to have, a profound interest in gossip about Apple. Therefore, it is not surprising that hundreds of thousands of 'hits' on a Web site about Apple have and will happen. But an interested public is not the same as the public interest."

Answer came from the judge

[daveschroeder]

This actually has *nothing to do* with whether bloggers are journalists!

The judge in the case rightly realized that, and didn't fall victim to the cries that this was a case of "blogger's rights" or any of that other shit. The judge realized that bloggers *can indeed* be "journalists", but not all bloggers *are* journalists.

The cases should be decided on whether there is a clear and significant public interest. In the case of these web sites, there is most definitely not. Therefore, they are not protected.

First Sign that Blogging is Dead

[WillAffleckUW]

and that everyone interesting has already moved on, is when the popular media backs you doing it.

Just like when grunge died.

Judge's Words, Paraphrased

[White Roses]

I think I recall reading that the judge in this case said, essentially, that information of interest to the public is not the same as information in the public interest. It was in the public interest to report wrongdoing on the part of Enron, WorldCom and the tobacco industry. It is of interest to the public what the next Apple products might be. The informants in the former case should be protected. In the latter case, not. The judge in this case seems to be a very clear thinker in that respect.

Not surprising, actually.

[bigtallmofo]

I think throwing their support behind bloggers accomplishes two goals for the mainstream press:

1. It shows they're not "old media" looking to kill "new media" with any chance they're given.
2. It keeps one source of their information coming

Many news stories in the last few years never would have happened were it not for bloggers. The mainstream media made a killing reporting on things that were originally posted on blogs (the Dan Rather document comes to mind as a big example).

Regardless of the legality or morality of the blogger's actions, I see this as a win-win situation for mainstream media.

Since when did the BBC...

[lxt]

...become a "newspaper"?

I actually heard a report on BBC Radio today about Apple's image, which touched upon the whole rumour site issue - they had an interview with the EFF lawyer who defended the sites. The basic point was Apple had slightly tarnished it's "little kid taking on the world" image.

The Difference...

[ackthpt]

Enron, World Con^Hm, big tobacco were hiding dirty business. Apple was trying to keep a new product under wraps until scheduled announcement. These are, um, apples and oranges.

The difference: illegal activity vs information

[mveloso]

In the cases sited (whistleblower cases), the people involved were exposing violations of Federal law.

In the Think Secret case, the issue is whether a journalist (whatever definition you use) can refuse to provide the identity of an individual (or individuals) who provided trade secrets or confidential information about upcoming products.

Even the tobacco guys were more like whistleblowers, as they showed (or tried to show) that Congressional testimony by executives was demonstrably false.

The Think Secret case is nowhere near this, and Apple will most likely succeed. If Think Secret exposed a violation of law somewhere (death rays to be deployed in Cupertino, toxic waste, etc) then maybe they'd have a chance.

But as is, well, Think Secret is toast. They've gotta use better anonymizers, that's all.

Re:what is journalism?

[TripMaster Monkey]

Sorry, but no. Leaking trade secrets is not journalism...it's corporate espionage, and deserves to be treated as such.

This isn't 1st Ammendment Rights...

[fussili]

as John Gruber noted it's pure and simple trade secrets law:

http://daringfireball.net/2005/03/new_york_times

Now I don't happent to know the legal system in the US all to well, my knowledge of IP law only covers the English system but it's fairly clear that this case has nothing at all to do with freedom of speech. Desperately trying to paint it as such is simply indicative of having no case to answer Apple's claim.

I was shocked to see the Instapundit being dragged in, Paul Reynolds is a law professor for Pete's sake. This isn't Bloggers trying to get the protection of Big Media because we have it at law, this is trying to do what many people have attempted in the past - using the 1st amendment as a shield to protect fraudulent activity. It hasn't worked in the past and it looks like it wont now.

All this case will prove is that bloggers are as much subject to Trade Secrets law as anyone else.

If you support the EFF

[rsborg]

and you don't like the position they are taking on this case, let them know: information@eff.org.

I have written and told them I DO NOT WANT my donation being used for this case, as I don't believe "freedom of the press" should be used as a "get out of jail free" card. There should be proof of "public interest" first.

Comparisons not valid.

[unclethursday]

Recent corporate scandals involving WorldCom, Enron and the tobacco industry all undoubtedly involved the reporting of information that the companies involved would have preferred to remain unknown to the public...

Except that the ThinkSecret et al cases have nothing to do with the whistle blowing that went on with Enron, WorldCom, and the tobacco industry. If the blogger sites had found out information that Apple was cooking the books and defrauding their stockholders and raiding their employees 401K plans and other retirement funds, or was knowingly coating their products in a toxic chemical that will eventually lead to a debilitating or fatal disease, then there would be similarities.

Releasing info on upcoming products that, while the public would be interested in for other reasons but do not affect the greater good of the public, is not whistle blowing. In the "public's interest" and for the Public Good are two entirely different things.

Basically, these news organizations and the AP are trying to ensure they cover their asses in the future, hoping that they can still protect whistle blowers, but it sounds to me like they have completely forgotten what the term whistle blower means. Either that, or a lot of the reporters had planned on doing similar things, and don't want to face the repercussions of doing so. Either way, they are in the wrong on this issue, not Apple.

One thing to blog...

[feloneous cat]

And quite another to be charging advertisers.

Let's face it, these are not Uncle Joe blogging about a rumor, these are folks making a buck off someone breaking a confidential agreement. Even bona fide journalists go to jail when they break the law or encourage someone to break the law to get a story.

I don't like NDA's, but the reality is they are legal and binding agreements. And breaking an NDA to get a 10-20 jump on an announcement is, in my view, rather stupid.

What would you have done if you were Apple?

[ABaumann]

Every so often, people mention Apple being mean and heavy handed in this instance, but think about what you would have done in their shoes.

Apple has had multiple leaks over the past few months.

- 60 GB iPod
- OS X 10.4
- iPod Shuffle
- iPod Mini

So, basically everything they plan to come out with gets leaked. They need to prove that their NDA's mean something. They asked for the source, couldn't get it, so they subpoenad. Then, the guy supboenad said he wouldn't reveal his sources because of freedom of the press or something, so Apple sued.

It's crucial that companies be able to protect their information. Can I divulge business sensitive information to reporters because I know they can't reveal me as their source?

Not everything is a trade secret!

[lmlloyd]

It is great and all to talk about how this is a case that deals with trade secrets, not freedom of speech, but I can't help but notice that time and time again all the Apple supporters consistently ignore that the judge they are so fond of quoting specifically said that he doesn't know if this material is actually a trade secret!

A trade secret is not any little piece of information a business decides it doesn't want to get out. Many businesses these days like to put up forums in lieu of giving a customer a phone number to contact, that doesn't make their phone number a trade secret. Many businesses like to keep pay of their employees confidential, that doesn't make your paycheck a trade secret.

A trade secret is an invention, process, or method that is vital to your business, and that you actively protect and to which you actively limit internal access. For example, a formula for some sort of beverage, might be a trade secret, however, if you post the formula in the break room of every bottling plant, then you can no longer expect protection of trade secret status for that formula, because you have failed to maintain secrecy. By the same token, it is HIGHLY unlikely that ANY marketing material (even internal marketing material) could be considered a trade secret. By its very nature, marketing material is practically in and of itself a violation of the very concept of a trade secret. Trade secret law is a subset of IP law that exists to protect highly sensitive information that is critical to the core business of a company. It is not a method by which the owner of a company is suppose to be able to sue someone for letting the public know his favorite color.

What is really at issue has absolutely nothing at all to do with whether or not a company is entitled to protect its trade secrets. If this were a clear trade secret, then there would be no debate. What is at issue here is whether or not a paranoid company can get away with trying to claim that every trivial piece of information generated in the day to day operations of their business, can be claimed as a trade secret any time they choose.

The ramifications of this are huge! It means that any celebrity could successfully sue for any rumor about them acting badly on the set, because how they act on the set is a trade secret. Any movie studio could sue anyone for passing rumors about an in-production movie, because that is a trade secret. Any software company could sue anyone publishing rumors about their development, because that is a trade secret. You are talking about completely standing our current model on its head, and shifting the balance of power to the company with a presumption that it is the reporter who must show some public good, rather than the company which must show some demonstrable harm.

Anyone who thinks that is a trivial change, is someone far too enamored of a single company to think rationally about this issue. There are a plethora of sites and publications (this one included) that would pretty much have to shut their doors if it is decided that a company can arbitrarily use trade secret protections for any information they choose, unless some grater public good can be demonstrated.

The Uniform Trade Secrets Act

[dafz1]

Apple is enforcing their rights under the the Uniform Trade Secrets Act(UTSA). Here's the pertinent parts of that law.

(1) "Improper means" includes theft, bribery, misrepresentation, breach or inducement of a breach of duty to maintain secrecy, or espionage through electronic or other means.
(2) "Misappropriation " means: (i) acquisition of a trade secret of another by a person who knows or has reason to know that the trade secret was acquired by improper means; or (ii) disclosure or use of a trade secret of another without express or implied consent by a person who (A) used improper means to acquire knowledge of the trade secret; or (B) at the time of disclosure or use knew or had reason to know that his knowledge of the trade secret was (I) derived from or through a person who has utilized improper means to acquire it; (II) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (III) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use; or (C) before a material change of his position, knew or had reason to know that it was a trade secret ad that knowledge of it had been acquired by accident or mistake.
(3) "Person" means a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity.
(4) "Trade secret" means information, including a formula, pattern, compilation, program device, method, technique, or process, that: (i) derives independent economic value, actual or potential, from no being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

1. TradeSecret induced breach of the NDA(or a duty to maintain secrecy), by asking readers for Apple Secrets. Go to their webpage, and click on the "Got Dirt?" link.

2. Misappropriation - ThinkSecret had reason know the information was "acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use."

3. ThinkSecret would qualify as "a natural person, corporation, business trust, estate, trust, partnership, association, joint venture, government, governmental subdivision or agency, or any other legal or commercial entity."

4. Finally, as defined by the UTSA, Project: Asteroid "derives independent economic value, actual or potential, from no being generally known to, and not being readily ascertainable by proper means by, other persons who can obtain economic value from its disclosure or use, and is the subject of efforts that are reasonable under the circumstances to maintain its secrecy."

Is Apple wrong for using the law? Apple is entitled to the protections of law, just as much as I am. Is the UTSA unconstitutional? That's for the courts to decide.

Re:Apple

[adzoox]

It's because Apple is right in this case ... contrary to what the reporters at these papers are saying ... there is no corporate scandal here, there is no health risk... plain and simple ... items were STOLEN from the Apple Campus and thenreported in opposition to the Uniform Trade Secret Act.

I suppose i wille flamebait and say ... besides ... the first ammendment was specifically written sothe public could have redress against the government and have the freedom to do so.

That said, if Apple were involved in corporate scandal or posing a health risk, those reporting WOULD have immunity because it would be an issue the government would have to address and impune.

For more on this issue, read:

Save Nick vs Save Apple ...