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Judge Finds For Apple in ThinkSecret Case 711

Posted by Zonk
from the you-lose-some dept.
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.
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Judge Finds For Apple in ThinkSecret Case

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  • by RobotRunAmok (595286) * on Friday March 04, 2005 @09:48AM (#11843455)
    ...but are these "three online publishers" journalists?

    I'll vote 'No.'
  • by jarich (733129) on Friday March 04, 2005 @09:50AM (#11843476) Homepage Journal
    It's about a company protecting their secrets from being rebroadcast on a world-wide medium.

    It's not about journalism or blogging.

  • Precedent (Score:3, Insightful)

    by kunwon1 (795332) <dave.j.moore@gmail.com> on Friday March 04, 2005 @09:54AM (#11843510) Homepage
    Santa Clara County Superior Court Judge James Kleinberg refused to extend to the Web sites a protection that shields journalists from revealing the names of unidentified sources or turning over unpublished material.

    and...

    Thomas Goldstein, a former dean of the Columbia University Graduate School of Journalism who worked as a reporter for the New York Times, filed a brief in support of the Web sites. "Just because Apple does not want these publications to report on its activities does not mean that they are not news publications," Goldstein wrote.

    This is setting a very dangerous precedent. If this holds up (through many appeals, unless I miss my guess), then what's to differentiate between CNN and CNN.com? Just because it's on the web means it's not journalism?
  • by afidel (530433) on Friday March 04, 2005 @09:54AM (#11843512)
    Yes, they may. But if the journalist is ordered to produce their source and they refuse then they can be jailed on contempt of court charges until the court is satisfied that their conviction is absolute or some reasonableness threshold is reached. Freedom comes at a cost!
  • by Threni (635302) on Friday March 04, 2005 @09:55AM (#11843516)
    Exactly. It's like claiming the laws against murder are a blow to the freedom to use a knife.
  • by varmittang (849469) on Friday March 04, 2005 @09:56AM (#11843528)
    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.
  • by Skye16 (685048) on Friday March 04, 2005 @09:58AM (#11843540)
    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.
  • by Anonymous Coward on Friday March 04, 2005 @09:58AM (#11843543)
    The constitution promises a free press, it does not give a totally free pass to report on a crime and not reveal who did it. There is some leiway and many states do give journalists an almost totally free pass, but the federal courts do not.

    Basically, journalists are citizens first and journalists second. If they know of a crime, why should they be given a free pass in regards to withholding information in connection with the commission of a crime? The simple answer is that they should not unless what was revealed was "for the public good" or something like that. Revealing secrets of upcoming Apple products will never qualify in this regard I hope.
  • by coder.keitaro (861991) on Friday March 04, 2005 @10:00AM (#11843559) Homepage Journal
    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.
  • by adzoox (615327) * on Friday March 04, 2005 @10:01AM (#11843564) Journal
    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)
  • by Anonymous Coward on Friday March 04, 2005 @10:02AM (#11843578)
    It's not about journalistic integrity or freedom, it's about corporate espionage and the seedy underbelly of corporate WAR!

    Employees usually sign all kinds of non-disclosure agreements when working in R&D, so for these leaks to be present, someone must be blabbing.

    I imagine ThinkSecret is in less trouble for discussing the secret than obtaining it, and that's what Apple is after.

    Daze
  • by ScrewMaster (602015) on Friday March 04, 2005 @10:04AM (#11843590)
    They're pointless anyway. No contract is any better than the people that sign it.
  • by johansalk (818687) on Friday March 04, 2005 @10:05AM (#11843600)
    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".
  • by Skye16 (685048) on Friday March 04, 2005 @10:06AM (#11843610)
    Wrong again; these news sites/bloggers did NOT agree to any of these NDAs; as such, it STILL has to do with journalism and blogging, at the minimum, and protecting your secrets (which is the purpose of the NDA in the first place).
  • by ignipotentis (461249) on Friday March 04, 2005 @10:09AM (#11843634)
    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.
  • by ramsesit (754749) on Friday March 04, 2005 @10:09AM (#11843639) Homepage

    I can appreciate that a journalist should have the right to protect their sources identity... for criminal cases (eg. robbery's, murders, etc) - these people are at risk of retribution (amonst other risks) should their real details become know.

    In this case (for example), Apple has invested significant time, money and effort in developing a product(s) that is a key part of their business development.

    In a market where being the first out with a new product can have sometimes significant impact on sales/income, leaks such as these can damage the company financially. I don't believe that these "sources" had any right in revealing the privileged information they held.

    I can appreciate that there are times that the situation can be ambigious of a fashion - it is here that the courts/judges come into play, to decide if the situation warrants a jouranlist revealing their source. In this situation, I think that they have done the right thing - there is no need to protect the source's identity(s).

    I know that this will most likely have reprocussions for the source - ie. loss of job, being sued, etc. However, in making the decision to reveal confidential information, this is a risk that they have chosen to make. Although I do feel sorry for them, and the consequences they have to face

    I love my gadgets (and oh how I do!). However finding what's coming up is interesting, but there's something nice about reading all the speculatory (new word?) posts leading up to a new product announcement :-)

  • by mmeister (862972) on Friday March 04, 2005 @10:11AM (#11843646)
    The real danger is that if Apple prevails (and while I am a fan of Apple's, I don't think this is a good move on their part), then anonymous sources will dry up -- not just for Apple "leaks", but for more important things, like government corruption and abuse.

    Bloggers and other non-traditional online press sites are becoming the new watchdogs since, sadly, all the networks, newspapers, and news stations are either afraid of the government or worse (FoxNews), in collaboration with certain controlling parties of the government. That means incompetence and abuse is more easily hidden from the public eye.

    NDAs are a civil contract between the "leaker" and the company. Think Secret and company are acting as the press and should be protected with our shield laws, period.

    Apple needs to use another method to find its leakers.
  • by fprefect (14608) on Friday March 04, 2005 @10:11AM (#11843655)
    What makes someone a journalist? Is it circulation in the millions? Is it a press pass? Is it a crumpled fedora? These days any hack with a blog can wrap something in HTML, slap a google ad on it, and call it journalism. Does that make it so?

    Does everything written to a wiki or a blog get full first amendment protection - not just your own free speech, but the ability to quote or reference facts from anonymous sources with impunity? That would be a great loophole, the Internet equivalent of "touching base" -- you caaan't get me.

    As for these sites, IMO they were established news organizations, and likely deserve such protection given their reputation and audience. However, I consider it a matter of fact to be decided by the courts whether a given individual is afforded these protections, as they should never be automatic.
  • Re:Precedent (Score:3, Insightful)

    by ShieldW0lf (601553) on Friday March 04, 2005 @10:13AM (#11843670) Journal
    It's simple.

    If you're the representative of a large news organization that can

    a) Buy Laws
    b) Buy Politicans
    c) Destroy Politicians

    Then you're a journalist and entitled to their protections. If you're not a representative of an organization like this, you're not.
  • by johansalk (818687) on Friday March 04, 2005 @10:13AM (#11843672)
    That's nonsense. The law does not care about "protecting your (corporate) secrets". This is only relevant because the NDA is a contract, and, like I already said, "Contracts are promises that the law will enforce"! (google for this sentence and see how often it occurs)
    The law in this case does not care about "journalism and blogging"; but simply that they are obstructing the enforcement of the law.
  • by geoffspear (692508) * on Friday March 04, 2005 @10:15AM (#11843685) Homepage
    And if someone burns down your house, you should have done a better job of fireproofing it. Obviously the arsonist shouldn't be held responsible.
  • by Anonymous Coward on Friday March 04, 2005 @10:21AM (#11843736)
    " Wrong again; these news sites/bloggers did NOT agree to any of these NDAs"

    You are right -- they didn't agree to these NDAs.

    But at the same time, encouraging folks to break the law is a grey area of legality. At least one of these companies has a toll free number that they claim is anonymous that anyone can call and leave anonymous tips to avoid being caught. This signifies that they are knowingly encouraging someone to break their contract. Beyond that, they are participating in this -- which pushes them further on the site of the grey area towards breaking the law.

    So regardless of them agreeing to the NDA, they are breaking the law.

    As a side note, did you realize that in some states, folks have been prosecuted for knowingly having affairs as this is considered to be knowlingly interfering with a legal contract? Not the husband or the wife, but the third party. I fully agree with this (there is very little to the sanctity to marriage these days -- who cares about homos getting married with hetros fuck up the institution far worse). This is the same sort of thing. You know someone is bound by law not to do something, and you encourage them to break these bounds.

    Free speech has limits.

    Sadly, I don't think any mainstream newspaper would do anything like this. Some would say thats why mainstream press will die in the near future. I'd fully agree with something like this *IF* it were breaking the law about something potentially dangerous to others, illegal, harmful to my gov't, harmful because of my gov't or otherwise -- but to find out when a company that makes fashion computers for the elite is bringing out a new product??? Geez...this isn't journalism. Anyone that isn't a pimply faced kid in an elite school put there by rich mommies and daddies knows this.
  • by LurkerXXX (667952) on Friday March 04, 2005 @10:22AM (#11843747)
    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.

  • by josecanuc (91) on Friday March 04, 2005 @10:25AM (#11843769) Homepage Journal
    From what I understand, it is a very serious felony for a CIA agent to reveal that he or she is a clandestine operator (secret agent) or to reveal the name of another agent.

    Someone revealed information that allowed a journalist/reporter to know that Valerie Plame was a secret agent and the "government" is attempting to have the journalist reveal their source of that information so that whoever committed the felony can be convicted.

    Nobody is trying to convict the journalist, though he/she may be charged with contempt of court for failing to answer a judge's question.

    The questions, in my mind, are: Did the journalist(s) act unethical when they printed information that put the life of a U.S. citizen at risk? My answer: Perhaps, but if so, it does not justify forcing them to break another journalistic code of ethics by revealing and possibly harming their sources.

    Journalism has this tradition or precedent of protecting sources. It's an important part of ensuring that the profession can remain balanced in judgement and free from censorship by allowing potential sources to not fear retribution for providing information.

    We've reached a clash, though, with the idea of "Trade Secrets" in this Apple case. There are laws protecting trade secrets. Do they trump the "sacred" institution of journalistic integrity? Do journalists and/or bloggers have any responsibility to act ethically? Is there any recourse for those who do not? Is there a difference in protecting someone's livelihood versus the latest info about a chunk of plastic and metal?
  • Hmmm... (Score:5, Insightful)

    by BrokenHalo (565198) on Friday March 04, 2005 @10:25AM (#11843773)
    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.

  • by Skye16 (685048) on Friday March 04, 2005 @10:26AM (#11843775)
    We aren't necessarily limiting the scope of our discussion to the law, but rather, what it should be. The first post in this thread stated that this situation had no bearing what-so-ever on journalism or blogging. I claimed that one has to admit that it does. Not necessarily in the eyes of the law, but in application to our society, it most certainly does. I don't know if you noticed or not, but this is slashdot, where we are "normal" people, not lawyers. Perhaps in a lawyer forum, you could automatically assume the conversation is limited in scope to the law first, but, given the audience here, you should automatically assume the scope is "the real world" first, not "legal system" first.
  • by Sean Clifford (322444) on Friday March 04, 2005 @10:26AM (#11843784) Journal
    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 [theregister.co.uk] a legitimate news service? Is Tomshardware [tomshardware.com]? Is Slashdot? Is Democracy Now [democracynow.org]? What about al-Jazeera [aljazeera.com]? Fox News [foxnews.com]? 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.
  • If This Were M$ (Score:1, Insightful)

    by Anonymous Coward on Friday March 04, 2005 @10:34AM (#11843834)
    everybody would be up in arms bashing them about how they want to control everything. But since this case is the glorious Apple... ahhh it doesn't matter anyway.
  • by mj_1903 (570130) * on Friday March 04, 2005 @10:34AM (#11843839)
    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.
  • by cowscows (103644) on Friday March 04, 2005 @10:41AM (#11843893) Journal
    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.

  • Re:Precedent (Score:3, Insightful)

    by tx_kanuck (667833) on Friday March 04, 2005 @10:44AM (#11843912)
    Perhaps, but if CNN/FOX/Etc thought that were the case, then I would bet that they would be tossing their hats into the ring. They would not want even a small precendent set in the appeals courts saying the web is not a journalistic forum.
  • Re:A few things: (Score:4, Insightful)

    by Catbeller (118204) on Friday March 04, 2005 @10:45AM (#11843927) Homepage
    "- 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."

    It's called the First Amendment.

    This situation is simple. The judge believes trade law overrides the First amendment, as well as 200+ years of journalistic tradition.

    This is becoming increasingly common. Americans don't understand and don't care about their civil rights. And when judges become so pro-business that the First becomes a null, we've gone over the top at last.

    All the more sad that so many Bush judges are now on the bench. The current situation is only a precursor to the next fifty years of amazing new findings by rightist judges. The legal atmosphere will be unrecognizable to anyone freshly imported from the 20th century.

    And I am ashamed, horrified that Apple, of all companies, is doing this. I'm reconsidering my future purchases of their products.

    Getting scooped on your product launch is part of being a free society. Any NDA's one has with one's employees is NOT the journalist's problem. A major part of journalism (pre-Bushism) is the cultivation of secret sources that reveal things their bosses don't like revealed. And Thinksecret is a news outlet, in the Ben Franklin tradition. If a gay call boy can get a daily pass under a fake name to the White House FOR TWO YEARS to be an undercover shill, and not be charged, and Robert Novak can out a CIA agent along with an entire CIA front company to ruin a White House critic without being arrested for treason, a man can report on an Apple product without being ruined.
  • i don't understand (Score:1, Insightful)

    by Anonymous Coward on Friday March 04, 2005 @10:47AM (#11843943)
    This isn't about ThinkSecret or any other web sites ability to publish stories. This is about someone signing a NDA then violating it. People sign contracts then bitch and moan about it all the time.

    I bought a condo, when I agree to purchase the place I agreed that my front door would always be blue and a certain shade of blue at that. So are they violating my freedom of expression? Maybe, but I'm the one who decided to live there under those rules.

    If you don't agree with the terms of contract or ULA don't sign. If you don't like the idea of a NDA go find somewhere else to work, if you don't like that a company tells you what you can or can't do with a purchased song don't give them your business.

    People really need to start taking responsible for the things they do.
  • by ajs318 (655362) <(sd_resp2) (at) (earthshod.co.uk)> on Friday March 04, 2005 @10:48AM (#11843959)
    They used to say somewhat cynically that the freedom of the press only applied to those who owned one.

    Today, many, many people have the ability to publish information to a wide audience. Ever since the late 1970s, when someone found that a dot matrix printer would punch stencils for a Gestetner machine, personal computers have been instrumental in the dissemination of information. Since then we have seen photocopying become the dominant method for short-run printing, printing quality get better ..... and then since the mid-1990s, when everyone who was anyone went on the 'net, no need for centralised printing anymore.

    Nowadays everyone who wants to be is potentially not just a journalist, but the editor-in-chief of their own newspaper. Nobody controls the media anymore.

    At least, that was how it was until this ruling. Now, the old scandalum magnatum law is well and truly back on the statute books. In fact, there's an idea for a protest: Walk around with a receipt pinned to yourself, because you've been sold to the corporations.

    {And please, please, please don't kid yourself that it's OK for Apple to behave this way because of who they are. The same laws apply to everyone. Next time someone throws their weight around, it might not be someone "nice" like Apple. Microsoft have just sent their Second XI in to bat, is how you should see this.}
  • by Sentry21 (8183) on Friday March 04, 2005 @10:50AM (#11843973) Journal
    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.
  • by eboot (697478) on Friday March 04, 2005 @10:52AM (#11843992)
    This is really starting to annoy me. Apple is acting as a company protecting it's interests, it is not the same as a monopoly protecting it's monopoly. Microsoft and Apple as companies are totally different. Apple are not trying to sue this blogger into the ground, they just want to know his source. They are in the RIGHT!!!! Microsoft operate in order to tighten their stranglehold on the OS market. Therefore many of the things they do are WRONG. This is not to say that Apple are always right and Microsoft are always wrong, but in this particular case Apple are right. So stop whining about bias in Slashdot, thats the way it is, the majority win.
  • Re:Hmmm... (Score:3, Insightful)

    by Anonymous Coward on Friday March 04, 2005 @10:57AM (#11844030)
    I wouldn't compare them to either. We're not talking passing on rumors, we're talking passing on trade secrets. You who will probably expound on the difference between piracy and theft should know this.
  • You're right, they should be allowed to treat blogs any different than the NYT.

    If the NYT had published an op-ed two months in advance about upcoming Apple products, then I would expect Apple to subpoena the NYT for the NDA violators as well.
  • by cowscows (103644) on Friday March 04, 2005 @11:03AM (#11844079) Journal
    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.
  • by HuguesT (84078) on Friday March 04, 2005 @11:06AM (#11844100)
    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 [apple.com]?
  • by Pac (9516) <paulo...candido@@@gmail...com> on Friday March 04, 2005 @11:13AM (#11844136)
    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 (Score:5, Insightful)

    by 2nd Post! (213333) <gundbear@p[ ]ell.net ['acb' in gap]> on Friday March 04, 2005 @11:13AM (#11844137) Homepage
    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.
  • by Nephroth (586753) on Friday March 04, 2005 @11:16AM (#11844163)
    Apple is a business like any other, and though they may have released some open source software, and though they may even somewhat embrace the neo-*nix culture, they are still a business out to do the same as any other company. Though I'm a little disappointed that Apple elected to throw some legal weight on this, I understand why they did it. For a company like Apple they need to get all of the buzz they can from product releases (unlike Microsoft, they can't simply demand you use their software/hardware). For now Apple is our ally, but remember that a significant jump in market share could change that at any time. Their computers and OS are sleek and sexy and I'd sure love a mini, but I will never part my slackware-running ominous grey box. Like a good dog, I know that will never turn on me ;)
  • by rjung2k (576317) on Friday March 04, 2005 @11:29AM (#11844280) Homepage
    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...)
  • by Calibax (151875) * on Friday March 04, 2005 @11:33AM (#11844324)
    The idea behind protecting a journalist's sources is so that people will talk to reporters in confidence, particularly about scandals that need to be exposed to public view, so that a journalist and his sources can be free to expose all the gory details without fear of legal retribution. That's all very laudable.

    This is somewhat different. Here the leak itself is the scandal. Some guy is breaking his NDA for some unknown reason - fame, revenge, to make himself feel good, whatever. For goodness sake, "Think Secret" was even soliciting people to talk to them about Apple's trade secrets. This case has nothing at all to do with protecting sources who are putting themselves at risk to expose a dark secret that the public needs to know about.

    This isn't about protecting a journalist's sources. It's just greed. This guy is not a journalist, he's merely exposing other people's secrets to make money. Calling himself a journalist doesn't make it so. If a person can be labelled a journalist (with legal source protection) just by creating a web site containing trade secret information, then the legal protection for trade secrets exposed in this way is weakened considerably.
  • by cannuck (859025) on Friday March 04, 2005 @11:38AM (#11844355)
    Matt Drudge (The Drudge Report) was the guest speaker at the USA's National Press Club. Drudge told the attending journalists from all the major news organizations (likely with 20, 30 years experience) that he was just as good/valid a journalist as they were - because he broke the Lewinsky-Clinton story. And he went on to explain how the www enabled him to become an instant (and rich??) journalist. Of course the Republican Party salivated over his story and used it to try to take Clinton down - since they couldn't beat him at the ballot box. That kind of set the pattern for the www. With respect to "justice" - hopefully nobody here actually believes that there is just one justice system. There are at least three - one for the rich, one for the elites, and then one for the rest of the masses. Naturally billionaires can crush anyone they want to by drowning them with lawyer costs. I hope this issue goes to the USA Supreme courts - it will expose the underbelly of Apple - and I wonder what we will see? Maybe the "apple shuffle" won't look so cute then. Even to people who love Apple's repackaging of 4 year old technology into little boxes - will start to question Apple's integrity. Maybe.
  • by the_wesman (106427) on Friday March 04, 2005 @11:40AM (#11844389) Homepage
    ... that this has anything to do with freedom to blog - anybody can write in their stupid blog as if anyway out there cares - the issue seems to me, more along the lines that these people at apple had a confidentiality agreement and they broke it - breaking a contract is against the law, that's why we have contracts - you can blog all day long, just don't break the law while you're doing it .... or something
  • Re:A few things: (Score:4, Insightful)

    by mindstrm (20013) on Friday March 04, 2005 @11:45AM (#11844427)
    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.

  • by emil (695) on Friday March 04, 2005 @12:03PM (#11844586) Homepage

    Instead of crucifying a penniless web journalist, tie bonuses of the development staff to news leaks (or lack thereof). Give your employees a reason not to snitch on you.

    Do you think that IBM would be reacting like this if news of a new Power5 server leaked?

    Apple, you make interesting products, but I hesitate to buy from you as you so often act like a grade school playground bully.

    Solve your problems with constructive action instead of trying to ruin peoples' lives.

  • Re:Hmmm... (Score:5, Insightful)

    by avronius (689343) * on Friday March 04, 2005 @12:09PM (#11844639) Homepage Journal
    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...
  • by Mycroft_VIII (572950) on Friday March 04, 2005 @12:14PM (#11844680) Journal
    Unfortunately this assumes 'the press' or 'free speach' is limited to a selected club. It can't be or the 1st amendmant is meaningless.
    The minute you start having special rules and liscences to define who is the press or who gets free speach, those rules quickly become "those who only say what we want them to say"
    I can't honestly believe so many people have failed to understand the 1st amendment. It was specifically meant to EXCLUDE the sorts of things being said here, namely government definition of what can be said.
    Perhaps these people are not 'in the club', but they are most definately covered by the first amendment and are the 'press'.
    Whether or not this protects them from Apples desire to learn the names of thier sources is a bit different though. Depends on the laws in question.
    I'm pulled a bit both ways on whether they should have the right to keep quite on thier sources. I simply lack enough data to have an opinion on that part yet.

    Mycroft
  • "Some guy is breaking his NDA for some unknown reason - fame, revenge, to make himself feel good, whatever. "

    if it's unknown, then why do you list those examples? Perhaps there are other reasons? but that doesn't matter, because whistle blowers often do it to make them selves feel good, or some sort of personal gain.

    ""Think Secret" was even soliciting people to talk to them about Apple's trade secrets."

    reports solicit people for secrets of one sort or another all the time, it's there job.

    "This case has nothing at all to do with protecting sources who are putting themselves at risk to expose a dark secret that the public needs to know about."
    Again, you assume only people revealing a "dark secret" deserve protection.

    "This isn't about protecting a journalist's sources."

    Even if I agreed with your previouse statement, it is STILL about protecting his sources.

    "It's just greed."
    the fact the journalists as a whole would have a much harder time doing there job if sources weren't protected could also be boiled down to "It's just greed."

    " This guy is not a journalist, he's merely exposing other people's secrets to make money. "

    thats what journalists do.

    "Calling himself a journalist doesn't make it so"
    no, but writing about stuff does.

    " If a person can be labelled a journalist (with legal source protection) just by creating a web site containing trade secret information, then the legal protection for trade secrets exposed in this way is weakened considerably."

    what legal protections? the only legal thing a corporation can do is instate company measure to protect there trade secret.

    The legal protection of citicens and reports needs to come before comepanies and there secrets.
    Comepnies "Dark Secret" are almost always trade secrets. Now reporters need to determine which ones are bad enough to reveal? what about little things that don't seem like a 'dark secret' but latter turn out to be just the tip of the iceberg?

  • Re:Hmmm... (Score:2, Insightful)

    by B1ackD0g (660299) <`mbriggs' `at' `mchsi.com'> on Friday March 04, 2005 @12:44PM (#11844966) Journal
    I agree with your whole post. The point, I think, is that apple should be pursuing this internally. They should be instituting rigor around information that is trade secret. The employee that leaked the info is the one who violated whatever employment agreements that are in place. The employee should be held accountable. If they can't find that employee, they aren't controlling access to their data well enough.

    Instead, they've gone after someone who isn't in the apple employee family. They're suing the publisher of the information.

    The blogs never broke any contract. You can't break a contract you didn't sign. They only related a rumor from a supposed insider. This happens on /. all the time. It happens at ABC, CBS, CNN, FOX and other organizations as well.

    So the question becomes, are the bloggers journalists? What defines a journalist? This judge seems to be making decision to define that. I don't like his opinion myself, but that's what this is about.
  • by bonch (38532) on Friday March 04, 2005 @12:45PM (#11844972)
    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:Hmmm... (Score:1, Insightful)

    by Anonymous Coward on Friday March 04, 2005 @01:01PM (#11845162)
    With all due respect to Woz, he does not run a multibillion dollar company that must rely on innovation to survive in an industry where a monopolist with a free-out-of-jail card lurks about. History showed over and over that when Apple showed their hands, they got beaten up by competitors that relied on copying and price cutting. Apple can't win when they have to pay the R&D for the rest of the industry without getting anything back. Jobs might or might not have forgotten his garage days, but he does have the responsibility of keeping Apple alive.

    Actually, I think Mac developers are short-sighted too since if Apple dies, there won't be a Mac. Then there won't be Mac developers. Maybe they are fine with changing to Windows developer, but I think the world is much poorer without Apple. Despite its size, Apple is one of the companies pulling the entire industry forward.

    I like Apple and I like reading ThinkSecret. I wish they could just do a settlement quietly. Despite of wherever I stand on the issue, this case is not simple and black&white. This is not just another case of bullying journalists.
  • by Anonymous Coward on Friday March 04, 2005 @01:26PM (#11845392)
    2 things; a journalist can protect his sources for whatever damn reason he/she wants. Once you start putting in little caveats about how it's really only acceptable for these selfless causes that I, (or the government), deem acceptable you are starting down a very slippery slope. How would you like if I told you that you had freedom of speech, could go out in the street and talk aloud about whatever you wanted!! as long as it was subjects that I decided were appropriate...you can't have it both ways sorry. Secondly, as far as this ThinkSecret case goes I don't see anything that would qualify as a trade secret anywhere. A trade secret is McDonalds recipe for their secret sauce, or some manufacturing trick that a company wants to keep from their competitors. All ThinkSecret published was specs for unreleased hardware. Look around and you'll see boatloads of websites doing exactly the same thing, as long as they haven't signed an NDA I don't see how they are doing anything illegal.
  • by ceejayoz (567949) <cj@ceejayoz.com> on Friday March 04, 2005 @01:43PM (#11845557) Homepage Journal
    No, when they wrote Amendment I, it was to ensure freedom of political speech, not the ability to rat on a company's products.

    Actually, there's a lot more to it than that.

    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.

    Nowhere does it say "speech" is limited to political speech, and freedom of press may well apply here.
  • by khallow (566160) on Friday March 04, 2005 @01:55PM (#11845694)
    This guy is not a journalist, he's merely exposing other people's secrets to make money. Calling himself a journalist doesn't make it so.

    Why not? The legal definition of who can exercise freedom of the press in the States and in California is quite broad. Further, their motives in this matter are irrelevant. Exposing other peoples' secrets is a legitimate press activity when the secrets are relevant to the public good (Apple's marketing strategy easily falls under this).

    In summary, I believe these sites to be legitimate members of the press and therefore are due the protections which the press enjoys.

  • by Digital Pizza (855175) on Friday March 04, 2005 @02:00PM (#11845739)
    While I believe in the right to privacy and in the freedom of the press, this seems to be about uncovering an NDA violation and not about punishing news sites. I think Apple has a right to know who's violating a contract with them.

    As for the journalists, encouraging people to violate their agreements crosses a line, of good taste at least.

    I'd feel the same way if it was Microsoft (though a little bit dirty about it :-)

  • Nope. (Score:4, Insightful)

    by Mr. Underbridge (666784) on Friday March 04, 2005 @02:24PM (#11845992)
    and it turns out to be true, it's not speculation? That's going to get a lot of stock investors into insider-trading trouble with the FCC :o)

    No. If you *know* something, you aren't *speculating.* To continue your wall street analogy, that's the difference between teh talking heads on CNBC and insider trading. If you have access to the information, it ain't speculation.

    I keep wondering what precident Apple can site for having authority over the writing of non-employees. If I write in my blog that there's a new Apple product called the iPod Macro, and it turns out to be true, can they sue me?

    Nope, but if you've claimed your source is an apple employee, they can *subpoena* you. Remember, this kid isn't being sued - he's being subpoenaed.

  • Re:Hmmm... (Score:3, Insightful)

    by jessecurry (820286) <jesse@jessecurry.net> on Friday March 04, 2005 @02:35PM (#11846084) Homepage Journal
    Agreed. However, even though I haven't seen the content, I was under the impression that the site was an apple review site. Was the information really harmful to apple? If not, what's the issue, other than a rogue employee.

    Well it is more of an Apple rumor site. If the site is using a source within Apple, then it would seem that the site is knowingly publishing trade secrets. I can't really agree with Apple's methodology, but due to numerous leaks they have to find a way to close the security hole.

    This seems like the Black Friday information issue. Wal-Mart and Target, et al, all want to keep sale items secret so you choose their store based on reputation. This hurts the consumer slightly, when you find out that a better deal was to be had at the other end of the mall. If that's the real issue, I can see why Apple might be a bit upset, but there again, don't go after the publisher, go after the employee's who are breaking trust with you. The publisher is providing a valuable service to the consumer based on knowledge at hand.

    I can't really see how not knowing what new products Apple is bringing to market hurts the consumer, sure finding out that a G5 is released a week after purchasing a G4 can be upsetting, but things like that always happen. I think that the real issue here is whether or not the publisher acted responsibly in publishing information about an upcoming product.
    I think that Apple should be allowed to know the sources if it was an Apple employee, if not then they have no reason to know. I have to say that I can see both sides of the argument, and that I don't want to see any serious harm come to the owner of thinksecret, but if I were in Apple's position I would want to know who was leaking trade secrets.

  • by Anonymous Brave Guy (457657) on Friday March 04, 2005 @03:10PM (#11846474)
    The law says, however, that a blogger/journalist CANNOT be held in contempt of court for saying "No, I will not comply with your order to reveal my confidential source."

    You've given away your bias there by writing "blogger/journalist". If you claim that this law truly extends to anyone writing on any web page, then you're effectively arguing that anyone who doesn't want to reveal who told them anything can simply write on a web page that someone did, and then use the shield law as an excuse not to tell the court. The scope for damage in giving legal weight to that argument is far greater than anything we're discussing here.

  • Re:Hmmm... (Score:4, Insightful)

    by iamwahoo2 (594922) on Friday March 04, 2005 @03:15PM (#11846526)
    he could have chosen to not fight it and just disclose the source.
  • by Anonymous Coward on Friday March 04, 2005 @03:15PM (#11846528)
    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.
  • Re:Hmmm... (Score:2, Insightful)

    by Anonymous Coward on Friday March 04, 2005 @03:29PM (#11846667)
    Recieving a cease and desist letter is the same as being sued?

    Why not? You are insisting that a subpoena is the same as being sued.

    All Think Secret needs to do, all they ever needed to do, is reveal who illegally leaked trade secrets to them, and all this is over.
  • Re:Hmmm... (Score:4, Insightful)

    by PriceIke (751512) on Friday March 04, 2005 @04:03PM (#11847099)

    > I think that Apple should be allowed to know the sources if it was an Apple employee, if not then they have no reason to know.

    Then all Think Secret has to do is tell them whether or not the source is an Apple employee. If the source is employed by Apple, then a name or an email address could be provided and then Apple can take it from there. If the answer is 'no', then Think Secret should have no further obligation toward the issue.

  • by Anonymous Coward on Friday March 04, 2005 @04:07PM (#11847147)
    If someone leaked information to the press about a top secret plane or something, people would be saying that this person should be found and prosecuted. This case is no different besides the possible consequences of the information leak. National security vs potentially lost profits.

    Now we all know how some people here are against anything for a profit so no wonder they object to Apple's case, but the 2 cases would be similar.
  • what journalism is (Score:3, Insightful)

    by sacrilicious (316896) on Friday March 04, 2005 @04:24PM (#11847381) Homepage
    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.

    Actually, Nick Riviera is a doctor, and somebody who starts a website is a journalist... they're both just getting started out and the quality of their output will be low for a while (well, maybe in Riviera's case it'll stay low). The point is, "being a journalist" is something that happens by degrees along a continuum of experience and reliability. It's easy to assert that a ten year old with a website isn't a journalist. Now here's where you ante up: if a ten year old's website isn't journalism, then where exactly is the dividing line between journalists and non-journalists? Fact is, there isn't any bright-line distinction, and if you were to claim there was one, I'd question the basis of your authority to make that claim. Journalism happens by gradual increments, and to claim you must be working for one of the huge media-conglomerate-owned fronts for hysteria and misinformation we call "network news" is a dis-service to the genuine legitimacy of new journalists that the internet enables.

  • by Caiwyn (120510) on Friday March 04, 2005 @06:26PM (#11848667)
    Yes, but the argument is being made that these people don't recieve protection from the shield law because they aren't "Journalists".

    The first amendment essentially grants "Journalist" rights to every citizen.


    You're missing the point. The Constitution has nothing to do with it. It says nothing about confidentiality of sources. The shield law does. And though the Constitution extends its protection to all citizens, the shield law clearly does not - especially since it's a state law and not a federal one. The Constitution is not the end-all be-all of legality.

    P.S. - By the way, the Constitution does not "grant" or even enumerate rights -- it restricts Congress from creating certain kinds of laws. There is a huge difference. If the Constitution were to enumerate the rights of the people, then the people would have no additional rights. Instead, the Constitution assumes that people have the right to do anything not specifically outlawed by Congress, and restricts Congress from outlawing certain things.
  • by Ohreally_factor (593551) on Friday March 04, 2005 @06:37PM (#11848777) Journal
    If you don't believe that there is any validity to trade secrets and confidential information, just say so. Then put your money where your mouth is, and post your social security number, your credit card info, and your medical history.
  • by MattHaffner (101554) on Friday March 04, 2005 @06:59PM (#11848983)
    Second, the public was indeed being protected. By releasing early Apple's near term marketing plans, thousands of Apple customers during the month of January were assisting in making better buying decisions. That's useful information.

    Your personal financial success is not a "public good". Nor is the collective financial successes of all potential buyers of Apple products.

    In fact, it's pretty easy to argue the reverse (as obnoxiously) since a decrease in Apple's profits due to leaks may adversely affect company performance and therefore the financial success of shareholders, employees, parts vendors, and retailers. A reduction in their financial success may indeed impact their local environment, most certainly not a "public good".

    "Public good" used in this context typically refers to ethical, safety, or common (meaning everyone in the society) good. Not generally qualitatively good.

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