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EFF Joins Fight Against Apple Lawsuit
Posted by
CowboyNeal
on Tue Feb 15, 2005 10:06 AM
from the free-to-say-whatever-they-allow dept.
from the free-to-say-whatever-they-allow dept.
sutterpants writes "The BBC is carrying a story on the legal battle between Apple and free press advocates. The Electronic Frontier Foundation has joined in the fight to protect journalists from revealing their sources. Which carries more weight: the right of Apple to protect their trade secrets or the rights of journalists to protect their sources?"
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UTSA and other considerations (Score:5, Informative)
http://www.washingtonpost.com/wp-dyn/articles/A793 7-2005Jan13_2.html [washingtonpost.com]
But while lawsuits against online publications are rare, he said, the Uniform Trade Secrets Act, versions of which have been adopted by about 45 states, including California, prevents third parties from exposing information knowingly obtained from sources bound by confidentiality agreements.
"Just because you don't have a relationship with the company doesn't necessarily immunize you, if you publish what you reasonably should have known was a trade secret," [Andrew] Beckerman-Rodau[, who runs the intellectual property program at Boston's Suffolk University Law School] said. "The First Amendment has been asserted more and more against intellectual property rights, but it's not faring well. Most courts haven't accepted it."
Apple doesn't really care about these web sites. They care about finding out who within the company (or contractor, etc.) is continually leaking this extremely accurate information to web sites (such as Think Secret). And no, it's not information that's "known" elsewhere. Some of these sites have got very reliable moles, and Apple wants to know who they are. Hint: yes, these are people who definitely have binding confidentiality agreements with Apple.
Regardless of whether or not Apple "should" or "shouldn't" be doing this, whether it's good PR or not, etc., if you can't see that it's wrong, legally and ethically, for these people to be leaking this information, then, well, we have nothing further to discuss. Is it journalism and free speech when you violate laws to obtain information? Ignorance of the law is no excuse...
And remember, whether or not you fundamentally *agree* with the law is irrelevant. It's either illegal, or not. (Yes, yes, sure, there's gray areas, but that's not the point I'm making. And sure, maybe these sites "fighting it" in this way is one mechanism to examine the validity of these laws, and further, the role of an online journalist and his information gathering mechanisms, what can be construed as soliciting known confidential information, what constitutes a violation of these laws in this context, etc.)
If Apple's goal is to find out who leaked this information - indeed, if it considers that information critical to its business - and there is a legal mechanism for perhaps recovering that information, is it not within its rights to file suit seeking that information, especially when criminal and/or civil laws pertinent to that very information may have been violated? You might THINK they should hire a private detective. You might THINK any laws prohibiting these sites from revealing such information are incorrect, immoral, or unjust. But those are subjects not relevant to the case at hand, unless, of course, you believe the EFF challenge is a fundamental challenge of these laws.
I'm not talking philosophy here, or whether or not government officials can/should leak to the press. This is not about the Seymour Hershes of the world and the Pentagon Papers. I'm talking about the legality of this particular case, which involves a corporate entity, not issues of "throwing reporters in jail" to "reveal sources". Note that under some conditions, journalists HAVE, in fact, violated the law, and have, properly, been thrown in jail. The concept of not revealing confidential sources isn't some high and mighty ethical concept; in fact, it's a rather selfish one: at some level, it ensures them more sources in the future. It makes them more effective as a journalist. Whether they've got lofty ideals or what have you is again irrelevant. The point is, we either enforce rule of law as set by society in this country, or we don't. And yes, we can work to change law(s), protest against them, a
Re:UTSA and other considerations (Score:5, Insightful)
I don't see what this has to do with attempting to force the journalists into releasing their sources.
The sources are the ones that are breaking the confidentiality agreements and leaking the information to the media. The journalists are then doing their job and reporting the information to the world.
If Apple wants to stop the leaks then they need to crack down internally and stop the people from breaking the confidentiality agreements. Whether that means paying the people more money, hiring more trustworthy individuals, or doing some sort of INTERNAL investigations, I don't know. What I do know is that they should NOT be attempting to coerce (through legal means) journalists into handing them the culprits on a silver platter.
Journalists need the protections so that they can be trusted by sources to release information w/o revealing the persons behind that release. If Apple is able to deny this right of protection over something as silly as a new product design how are sources supposed to trust journalists over something important?
Re:UTSA and other considerations (Score:5, Insightful)
The only problem is that someone breaking a trade secret and giving it to a journalists never has a right to anonymity in this case.
It is similar to you telling your lawyer or psychiatrist that you intend to go hurt someone. Not only do you lose your right to confidentiality (these two professions are normally protected by attorney-client privilege and doctor-patient privilege), but in that case both of those people are even REQUIRED to inform the correct people.
This is not a case of telling a journalist *ABOUT* an illegal act, this is a case where telling the journalists *IS* the illegal act, and the journalist was party to this illegal act.
The sources are the ones that are breaking the confidentiality agreements and leaking the information to the media. The journalists are then doing their job and reporting the information to the world.
One problem - the journalist, at the same time, is knowingly accepting information they know to be protected by an NDA, and that makes the actual act illegal.
There is a big difference, in my head, between telling a journalist anonymously about a crime, and telling a journalist something illegal to be told.
A Free Press (Score:5, Insightful)
I have no definitive answer as to what the Bill of Rights meant by the term "press," but I'm happy to take an educated guess.
At the time of the United States's founding, the journalistic landscape wasn't what we've had for most of the 19th and all of the 20th century: namely, media dominated by major newspapers. There were many, many individual owners of printing presses.
These printers (and Benjamin Franklin was one) handled the various printing needs of their towns. They also usually printed newsletters relating local events, political issues, weather forecasts, farming tips, and so forth. In addition to these newsletters, they printed political pamphlets, including Common Sense and the Federalist Papers.
The situation then was much closer to the blogs, e-mail newsletters, and Web forums we have today.
I think, from a constitutional standpoint, you could definitely argue that blogs -- and other Internet goodness -- are in no way second-class journalistic entitites, but instead have the same rights afforded to the New York Times, et. al. They are the modern versions of the Colonial and Revolutionary press.
Re:UTSA and other considerations (Score:5, Insightful)
While the information in question was classified as a trade secret, without him knowing that it was coming from someone under NDA he's not in violation of the UTSA, which is what he's being sued under.
All that said, the UTSA is valid, but it's not that hard to get around. Simply not asking whether or not the source of information is bound by a NDA is more than enough to protect you from liability under the UTSA.
Bottom line, Apple is bringing it's weight to bear on someone in order to coerce the names of his sources, and those are protected by 1st amendment rights. I say good on the EFF for stepping up on this one.
Re:UTSA and other considerations (Score:5, Insightful)
First of all, I don't buy the ignorance excuse. In Nick's case, he's been doing this a LONG time, so he does know what's going in, and the issues at hand have happened since he was over 18 years of age.
While the information in question was classified as a trade secret, without him knowing that it was coming from someone under NDA he's not in violation of the UTSA, which is what he's being sued under.
It's if he *reasonably* should have known it was coming from someone bound by an NDA. This isn't one of those "if you ask if someone's a cop they have to tell you" myths (they don't), and likewise, you just can't claim ignorance when you're getting information about things like a sub-$500 Mac, probably one of Apple's most closely guarded secrets ever (until Think Secret published it); one which most Apple employees themselves didn't even know about until Macworld. He has sources within Apple or within Apple contractors, period, and he knows damned well they're bound by NDAs. Of course, I can't categorically prove that, and the legal process will attempt to discover this, and his disposition, etc., and his legal team will no doubt paint him as hapless, innocent "blogger", when in reality, he knows damned well what he's doing.
All that said, the UTSA is valid, but it's not that hard to get around. Simply not asking whether or not the source of information is bound by a NDA is more than enough to protect you from liability under the UTSA.
Untrue. See above.
Bottom line, Apple is bringing it's weight to bear on someone in order to coerce the names of his sources, and those are protected by 1st amendment rights. I say good on the EFF for stepping up on this one.
Ok, if it's because you think the UTSA is fundamentally "wrong", I'll agree with you. They can definitely protest. However, as I thought was clear in my initial post,
- 3rd parties, including possibly "journalists", might be prohibited from revealing information that was obtained from someone who can reasonably be assumed to have broken a confidentiality agreement (and, further, if anyone with a web site can claim to be a "journalist", then it would seem that a law like the UTSA would be rendered useless - try to at least understand that, whether you agree with the law or not)
- The first amendment has already been *unsuccessful* in various similar cases of trade secret leaks, even by 3rd parties, as noted in the Washington Post article
So while you can make the argument you're making, it might not represent the reality of the situation.
Re:UTSA and other considerations (Score:5, Informative)
I'll repeat, just in case:
http://www.washingtonpost.com/wp-dyn/articles/A79
But while lawsuits against online publications are rare, he said, the Uniform Trade Secrets Act, versions of which have been adopted by about 45 states, including California, prevents third parties from exposing information knowingly obtained from sources bound by confidentiality agreements. [i.e., an NDA]
"Just because you don't have a relationship with the company doesn't necessarily immunize you, if you publish what you reasonably should have known was a trade secret," [Andrew] Beckerman-Rodau[, who runs the intellectual property program at Boston's Suffolk University Law School] said. "The First Amendment has been asserted more and more against intellectual property rights, but it's not faring well. Most courts haven't accepted it."
Just because you don't agree with the UTSA doesn't make it disappear. It remains to be seen whether the UTSA can be legally asserted by Apple, as they haven't publicly commented on this case beyond saying "Apple's DNA is innovation", etc., but the fact of the matter is that a law may indeed have been broken in the publication of information reasonably known to have been protected by a confidentiality agreement, period.
Re:UTSA and other considerations (Score:5, Insightful)
When that "third party" is the Press, then the 1st Ammendment applies. Regardless of the nature of the organization whose confidentiality was breeched.
Your argument is spurious. Being a member of the press offers no specific protections in the constitution. Anyone can act as a reporter, just by reporting information. Let me pose an example for you. If a reporter yells "fire" in a crowded theater, when there is no fire, are they immune to prosecution?
Reporters are not protected when breaking the law, except in a few specific cases where whistle blower statutes protect reporters and sources when their is an overriding public interest or threat. I'm sure many mac fanatics would have died had the specs not been leaked, so in this case I'm sure the reporter in question will be protected.
Re:UTSA and other considerations (Score:5, Insightful)
Lets put it this way. Is it OK for the press to publish your bank account numbers and pass phrase that a hacker gave them? Is it OK for them to publish the codes to launch nuclear missiles given to them by a foreign spy? Is it OK for them to publish slanderous and completely untrue information in order to inflate their own stock price? The answer to all of these questions is "no." The reason is because they break laws. There are several laws that restrict free speech and they apply to both members of the press (a legally undefined term) and everyone else. The reason these laws exist is because the supreme court and congress agree that other clauses of the constitution take precedence over the freedom of the press clause in a few specific instances. This does not in any way stop them from publishing this information, it just means that they will be punished by the law after doing so. Get it?
Being a reporter does not make it legally OK for you to break laws, even ones relating to publishing information and even if that information is true. You may not agree with those laws, but even someone as anti-law and anti-big-government as myself is glad that their are a few of them. Just as a reporter can be put in jail for printing a giant sign that says "WARNING FIRE, EVACUATE IMMEDIATELY!" and putting it on the screen in a movie theater, they can be arrested for knowingly publishing illegally obtained trade secrets. The accuracy of the information, has nothing to do with it.
Re:UTSA and other considerations (Score:5, Insightful)
So the fact that Novak outed Valery Plaime as a CIA operative even though it's specifically illegal to do so means that he should be prosecuted?
Legally, it is my understanding that is the case. When the people in charge of enforcing the law, however, have a vested interest in not seeing a violation prosecuted, there is little hope that anything will happen. Both Bush and Ashcroft are obviously guilty of misappropriating funds and spending them in ways specifically forbidden by law. I don't expect either will be inside a courtroom anytime soon. In the Apple case, they have money and lawyers and their is no conflict with the administrations agenda, so I expect the law may actually be enforced if it comes to that. Apple does not seem too interested in prosecution though, only in subpoenaing the name of the leak, so that they can fire his ass. I'd probably do the same.
Re:UTSA and other considerations (Score:5, Insightful)
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.
Freedom of Speech and Freedom of the Press are two separate items. A fact that is quite frequently forgotten. I, for one, see six separate points in the above text.
The Press has its own freedom, outside the concept of "Freedom of Speech."
Re:UTSA and other considerations (Score:5, Informative)
Wrong. The Uniform Trade Secrets Act law(s) in various jurisdictions may have been broken. Sure, it may all revolve around civil and contractual issues, but that's somewhat irrelevant. The reason this law *exists* is to prevent people from skirting NDAs by simply leaking information to a 3rd party.
In this case Think Secret is a 4th party and is NOT subject to the NDA.
How do you figure Think Secret is a "4th" party? It is extremely likely that Think Secret is getting its information directly from people who are themselves bound by confidentiality agreements. How does that make them a 4th party?
This is an "Apple leaking info" problem.
Yes. And it still may violate statutes to disseminate the information that was obtained. That's what the legal system will determine, eh?
If Apple wants to "out" the leaks they should create "special projects" and place their suspects in that project.
Then watch the Think Secret web site...
That's one way to do it. And they may have even already done things along those lines. But there are laws that exist that may have been violated, which you're choosing to conveniently ignore.
Considering it's been 30 years... (Score:5, Insightful)
Re:Considering it's been 30 years... (Score:5, Funny)
Which carries more weight? (Score:4, Insightful)
"Which carries more weight: the right of Apple to protect their trade secrets or the rights of journalists to protect their sources?"
Journalists.
Next question.
Tough decision (Score:4, Insightful)
Why not look and see which right is guaranteed by the Constitution? Hmmm, nothing about trade secrets there, but I do see something about free speech and freedom of the press in the First Amendment. So I would pick door number two.
Re:Tough decision (Score:4, Insightful)
The only person you have a right not to incriminate, constitutionally, is yourself. Of course, other exceptions (physician, priest, attorney) have become protected, as have in many cases journalists, but while they may have a fundamental right to publish the information, they don't have the right not to testify about a crime which was committed just because they have the right to publish.
Free Speech? Freedom of the Press? (Score:5, Insightful)
None of that is in question. Extend that to Apple. Apple is NOT suing so that the website gets shut down or their content restricted. Incorrect.
What IS happening, is Apple would like to know who the source of the information is, so that they can appropriately charge the person with breach of contract (which they ARE).
This has NOTHING AT ALL to do with the First Amendment, this has to do with legislation relating to journalists' sources. I'll admit freely that I don't know anything about legal precedent, BUT I can tell you that the case has NOTHING to do with the First Amendment.
Simple (Score:5, Insightful)
The rights of Apple to protect their trade secrets is not really the case here, as I understand it. The breach of trade secrets was done by, I assume, someone from inside Apple. This is the culprit that Apple should seek. But they are taking the easy route and trying to bully a small time web site in the hopes that it will discourage similar reporting in the future. Not very upstanding behaviour. What they should be doing is a security audit to find where the leaks are coming from. However, that is much more difficult and complicated. Its easier to try and put the fear of litigation into everyone. *sigh*
Freedom of Press (Score:4, Insightful)
If you have trade secrets, you need to be very careful who you give them to, period. If a person you trust releases their secrets, its because you didn't do a good enough job of understanding that person.
If I were a journalist, I'd go to my grave with my sources, if they wanted to remain anonymous. Freedom of speech also includes the freedom to shut up. That goes for corporations and journalists.
*sigh* (Score:5, Insightful)
That this is even a question is cause for concern. Originally, from what I gather from history, journalists held a very important role in our society. Arguably more important than politicians: They were the watch dogs. They were the ones keeping our elected representatives honest. They had to have free reign, unrestricted by those that held power, to do their jobs effectively.
Now of course, journalists are simply mouthpieces for which ever party they subscribe to. Maybe it's always been that way, who knows, I don't really glean that much off the history I've read.
The question is "harm" (Score:5, Interesting)
Journalists live and die by the "tips" they get.
The question is the "harm" they can cause by releasing the information.
If a journalist gets a tip that the police are looking for a suspect, releases said tip, and the suspect evades capture by getting the heads up, then the Journalist has, wittingly or not, obstructed justice.
In this instance, wittingly or not, the journalist has revealed trade secrets.
Another example? How about embedded reporters disclosing their whereabouts while in a military operation overseas (hypotethically, of course this would never happen). They endanger the lives of service men and women as well as the operation, but don't even need a source - they (or their GPS) are the source.
Being a "journalist" doesn't give one free reign to break laws.
My vote is that those who disclose confidential (NDA protected) information to a Journalist are breaking the law (civil law vs. criminal law - can be fined but not incarcerated) and the Journalist can choose to use that information if they are willing to also stand before a civil court for their actions.
If they did not know the information was priviledged, then they can just turn over the source, and have that source answer for their actions.
Define "Journalists" (Score:5, Interesting)
White House plant in the Press Corps?
Unemployed Columbia J-School graduate?
MSNBC Web Jockey given too much control over content?
Me, You, here, "blogging" our opinions on an extremely popular web site?
Senile "anchor" person who looked sexy twenty years ago and hasn't written a news story in his/her life?
A perky Fox News Info-Babe?
An ex-SNL comedy writer hosting a radio show on an avowedly anti-right wing network?
The producer/writer for the ex-comedy writer's show?
Jon Stewart? Jon Stewart's producer?
Jayson Blair?
The guys who covered up for Jayson Blair?
Rush Limbaugh (currently billing himself as "America's Anchorman")?
The diligent, dutiful Editor-in-Chief of the local High School Newspaper?
Some guy from Al-Jazeera whose cousin is in Gitmo?
Armed Forces Radio?
It's 2005. "Journalism" means everything and everything. Define "journalist" for me and I'll tell ya whether his sources should be protected, laughed at, or locked up...
Definition of Trade Secret Please (Score:5, Interesting)
What's the deal? I've seen "secret" photos and whatnot of covered cars on tracks before they come out.. seems that in other cases the manufacturer just keeps a tighter lid on it.
Why is the EFF getting involved? (Score:5, Informative)
After initially threatening to subpoena reporters directly, Apple sent subpoenas to Nfox.com, the email provider for PowerPage publisher Jason O'Grady. By forcing Nfox to hand over O'Grady's email, Apple hopes to find out who told the journalist about an upcoming product code-named "Asteroid."
"Rather than confronting the issue of reporter's privilege head-on, Apple is going to this journalist's ISP for his emails," said EFF Staff Attorney Kurt Opsahl.
In its request for the protective order, EFF points out that reporter's privileges protect the anonymity of sources regardless of whether third parties hold a journalist's records.
Aha! Now that is something a bit different, and I'm glad the EFF isn't (as the story comment implies) saying that trade secrets shouldn't be protected, because that would stupid. Apple isn't wrong for protecting it's trade secrets, but I would agree that this "innovative" approach isn't fair.