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Apple's court case could very well change news reporting as we know it

A year or two ago, Apple Computer became intolerant to the fact that its unreleased product information was being leaked to the public. To Apple, this was a breach of trade secrets, something that many companies do not take lightly. Fortunately, for journalists, the law protects them and their sources from corporate giants. In fact, under the First Amendment, journalists have the right to keep their sources a secret.

Apple decided to take the issue to a higher level and today is in court defending itself. Apple is fighting with the Electronic Frontier Foundation (EFF), an organization dedicated to protecting the rights of journalists. The EFF is defending three websites dedicated to reporting Apple-specific information: AppleInsider.com, MacNN.com and PowerPage.org. According to the court case, Apple is not actually going after the sites themselves, but is going after a ruling that would allow it to obtain information on who leaked information to the websites. Apple believes that its employees are accountable for the leaked information, and it wants rights to put down the hammer.

If Apple wins the case, it could jeopardize the rights of journalists everywhere. Corporations would be able to request the identities of those who leak information and news reporting would be hurt. However, The Mercury News reports that Apple faces a tough fight. It’s being asked difficult questions and so far, the courts have not yet deemed Apple’s claims to be valid. "All you want here is the name of a snitch, so you're saying you have the right to invade the privacy of the e-mail system and to trump the First Amendment ... just to find out who in your organization is giving out inappropriate information?" said Judge Franklin Elia.

Other high tech companies, including Intel have now joined in to give support to Apple. The case itself is shaping up to be a milestone case, for either side of the industry. But the three websites and the EFF are not alone. Other media corporations such as The Associated Press are chiming in support. DailyTech previously reported that Apple had filed for patents regarding a method to interact with computers using physical gestures. While the pictures in the report are public information, some diagrams relating to unannounced technologies that were published by other Apple-focused news sites were not. Interestingly, after examining the diagrams, Judge Conrad Rushing asked Apple "It's just a picture of a product, why is that a trade secret?"

DailyTech, like many other news publications, does not sign disclosure agreements -- so best of luck to the EFF.


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You seem to forget, that it's not an absolute right
By KBunn on 4/21/2006 12:58:11 PM , Rating: 2
Freedom of the Press, and Freedom of Speech are not absolutes.

If you think I'm wrong, do the classic. Go into a crowded theatre, and start screaming "FIRE" at the top of your lungs.

Ever heard of Libel? That seems to be an infringement on the absolute rights of the press, as well. And yet nobody seems to think that it's a bad thing to prevent.

I'm 100% on Apple's side on this one. And I was all for tossing the NYT reporter in the can as well. It's a pretty simple issue to me.

Shield laws are there to provide an informant anonymity when he provides information to the public, that the public has a "right" to know. When an informant is leaking something that is being done illegally, etc, he absolutely needs to be protected.

*BUT* when the informant is the one breaking the law. By disclosing something that they shouldn't. Something that they have a legal obligation not to disclose/release, then they should be pursued to the fullest extent of the law.




By archermoo on 4/21/2006 1:07:05 PM , Rating: 2
Agreed. If the people who leaked info from Apple broke laws, they should be prosecuted for it. But without forcing the members of the press to reveal their identities. Freedom of the press is indeed not absolute. It can be breached in the overwhelming interests of the public good, for instance matters of national security. And it can be breached if the members of the press themselves do something illegal, for istance commiting libel. However, courts have ruled consistantly that members of the press publishing classified government documents have themselves done nothing illegal, even if the person who gave them the information did.

The members of the press in this case have done nothing wrong. And keeping Apple's "trade secrets" under wraps is not a matter of national security. Should they go after whoever is leaking information? If they want to, sure. They probably violated their employment contracts at the very least, and may have violated the law as well. But the members of the press are under no obligation to reveal who they got the information from.


By TomZ on 4/21/2006 1:12:17 PM , Rating: 2
Just to be clear, there is no mention anywhere of Apple employees breaking any laws when/if they disclosed this information. At worst, they violated the terms of their employment agreement and/or NDA. This is purely a cival matter, not a criminal matter.


Civil not Criminal
By KBunn on 4/21/2006 2:40:31 PM , Rating: 2
It's all still a matter for the courts, and thus it is about the law. Contracts are legally binding.


RE: Civil not Criminal
By archermoo on 4/21/2006 4:06:07 PM , Rating: 2
quote:
It's all still a matter for the courts, and thus it is about the law. Contracts are legally binding.


True. But contract enforcement between two entities is certainly not sufficient grounds to breach the freedom of the press.


But perhaps they should be.
By KBunn on 4/21/2006 1:18:56 PM , Rating: 2
Confidential informants are protected, so that people will be safe if they release information to the public, that should be released.

But why on earth should the press have the absolute right to protect criminals? No public good is served, by the press being given carte blanche to obstruct justice.

Nobody is trying to punish the press here, and they shouldn't. All they did was pass on information, which is their responsibilty. But they should have an obligation to the public, to help uphold the laws, as well. And contract law between an employer, and an employee, is part of the legal framework that makes the country work.

Where is the greater good here? The ability to publish anything you damn well please, just because it came from an "anonymous source"? Or helping the justice system deal with a blatant criminal?


RE: But perhaps they should be.
By archermoo on 4/21/2006 1:30:12 PM , Rating: 2
The members of the press don't have the absolute right to protect criminals. However they don't have the obligation to identify them either. And as others have said, it isn't clear that anyone who leaked information broke any laws. An employment contract is legally binding between the employee and employeer, not anyone else. A fast food worker isn't under any obligation to reveal that the guy from the computer store down the street takes 90 minute lunches every day, even if that violates the computer store workers employment contract.

The greater good here is to keep the press free. I don't see any compelling reason to abrogate that freedom just because a large corporation wants the courts to do so.


RE: But perhaps they should be.
By TomZ on 4/21/2006 2:12:12 PM , Rating: 2
quote:
The members of the press don't have the absolute right to protect criminals.

Where are the "criminals" in this case? What laws were broken?


Contract law
By KBunn on 4/21/2006 2:44:00 PM , Rating: 2
An employment contract, everything that goes with it is legally binding. That's the laws that have been trampled by the leakers.


RE: Contract law
By TomZ on 4/21/2006 2:49:43 PM , Rating: 2
Breaking the terms of a contract is a tort, not a crime.


RE: Contract law
By archermoo on 4/21/2006 4:10:59 PM , Rating: 2
quote:
An employment contract, everything that goes with it is legally binding. That's the laws that have been trampled by the leakers.


An employment contract is legally binding to the signatories, but it is not law in and of itself. And it is certainly not binding to third parties.


By TomZ on 4/21/2006 1:10:29 PM , Rating: 2
The NYT case involved national security. The Apple case involves a company getting information HR reprimand/dismissal of Apple's employee(s). Are you sure that you would weigh these the same, relative to the First Amendment?

Helping to protect company employees from exposing trade secrets is not a compelling reason, IMO.


The same? No. But close.
By KBunn on 4/21/2006 1:23:57 PM , Rating: 2
When you get down to the bottom of it all, it's about 2 criminals.

You break the law, and you should be pursued, and prosecuted.

The severity of the crime can be taken into account at sentencing. But the crime itself is the same act. It's just a different scale. Steal a candy bar, and get punished. Steal a car, and get punished more. But they both are crimes, and both have punishments.


RE: The same? No. But close.
By archermoo on 4/21/2006 1:37:16 PM , Rating: 2
So you don't see much if any moral difference between leaking the identity of a covert intelligence operative and leaking information about a new product?

Certainly as I have said before if the people involved in leaking the information in question broke any laws, they should be punished for it. The members of the press just aren't required to identify them.


RE: The same? No. But close.
By TomZ on 4/21/2006 1:58:02 PM , Rating: 2
What law is being broken here? If an employee exposes a trade secret, I don't think there is a crime committed.


RE: The same? No. But close.
By Weaselsmasher on 4/21/2006 2:21:22 PM , Rating: 2
http://www4.law.cornell.edu/uscode/html/uscode18/u...

Title 18, part 1, chapter 90, section 1832

(a) Whoever , with intent to convert a trade secret, that is related to or included in a product that is produced for or placed in interstate or foreign commerce, to the economic benefit of anyone other than the owner thereof , and intending or knowing that the offense will, injure any owner of that trade secret, knowingly—
(1) steals, or without authorization appropriates, takes, carries away, or conceals, or by fraud, artifice, or deception obtains such information;
(2) without authorization copies, duplicates, sketches, draws, photographs, downloads, uploads, alters, destroys, photocopies, replicates, transmits, delivers, sends, mails, communicates , or conveys such information;
(3) receives, buys, or possesses such information , knowing the same to have been stolen or appropriated, obtained, or converted without authorization;
(4) attempts to commit any offense described in paragraphs (1) through (3); or
(5) conspires with one or more other persons to commit any offense described in paragraphs (1) through (3), and one or more of such persons do any act to effect the object of the conspiracy,
shall, except as provided in subsection (b), be fined under this title or imprisoned not more than 10 years, or both.



Emphasis in bold is mine.

Theft of trade secrets is a crime. Disclosure of trade secrets is a crime.

If you, as a member of the press, publish material you know to be a trade secret, you yourself are the criminal . Trade secrets are, by definition, none of the public's business, and there is no "right to know" a trade secret, nor is there protection for claiming that non-existent right. There is no "except for the press" clause in the above law.

The reporter in question is a felon as a co-conspirator to break the above law. This is not a First Amendment issue. It's an issue of an industrial spy hiding behind claimed status as a journalist to get away with a felony.


RE: The same? No. But close.
By archermoo on 4/21/2006 2:35:58 PM , Rating: 2
You need to read a bit more carefully. Check out section (a) again. Specifically the "and intending or knowing that the offense will, injure any owner of that trade secret". Since the leaked info wasn't leaked to harm Apple but to hype up the fans, it doesn't look to me like it was done to intentionally harm, or with the idea that it would harm them. So this law doesn't apply.

And besides, it wouldn't apply to the press. The person who leaked it info, potentially, but not the press. Courts have ruled consistantly that members of the press cannot be prosecuted for publishing confidential government information. Do you really think that corporations are any better protected under the law than the government is?


RE: The same? No. But close.
By jcolonial7 on 4/21/2006 3:54:16 PM , Rating: 2
WRT the intentional harm loophole, I think Apple's argument would be that the act of publishing trade secrets for the competition to see and use constitutes harm. Obviously I don't work for Apple, so I couldn't verify that, but I think the trade secret policy at stake here goes beyond fan hype. Just my 2cents as to how this law might actually apply in this case...


RE: The same? No. But close.
By archermoo on 4/21/2006 4:03:17 PM , Rating: 2
quote:
WRT the intentional harm loophole, I think Apple's argument would be that the act of publishing trade secrets for the competition to see and use constitutes harm. Obviously I don't work for Apple, so I couldn't verify that, but I think the trade secret policy at stake here goes beyond fan hype. Just my 2cents as to how this law might actually apply in this case...


Even if Apple could show that the leak did cause some harm to them, that wouldn't be enough. Apple would have to show that the leakers knew it would harm them, or that they intended to harm them. If they can't do that, the statute doesn't apply.


RE: The same? No. But close.
By jcolonial7 on 4/21/2006 4:19:52 PM , Rating: 2
Well then I guess we're in agreement that this statute can apply if Apple can prove intent


RE: The same? No. But close.
By archermoo on 4/21/2006 4:55:14 PM , Rating: 2
quote:
Well then I guess we're in agreement that this statute can apply if Apple can prove intent


Oh certainly. If they could prove that the people who leaked the info did so to hurt them, or that they knew it would hurt them, then it would certainly apply. It still wouldn't rise to the level of compelling the members of the press involved to disclose the names of their sources however.

Potentially it would even apply to those members of the press as well, but I'm guessing that would be even harder to prove that they published the information either with the intent to harm Apple, or with the knowledge that it would harm them.


RE: The same? No. But close.
By peternelson on 4/23/2006 6:55:14 AM , Rating: 2

Things get a little blurred when company marketing departments use the "leak" technique to preview or launch their products.

Obviously if the company colluded in something that LOOKED like a leak but was in fact deliberate provision of product information, that changes things rather a lot.


RE: The same? No. But close.
By TomZ on 4/21/2006 2:52:18 PM , Rating: 2
In addition to archermoo's point, I would also point out the phrase "to the economic benefit" ... what is the economic benefit to the employee that may have leaked the secret?

It seems these laws are written to curb industrial espionage. They don't seem to apply in this case, IMO. But I am not a judge, nor a jury. I guess the attorneys and court will have to decide.


RE: The same? No. But close.
By drwho9437 on 4/21/2006 6:14:12 PM , Rating: 2
I completely agree with you. The press has no right to create an illegal protected backchannel to break civil law. Now if someone wants to challange the constitutionality of this law on trade secrets based on some first amendment arguement more power too them. But as the law sits Apple is right...


RE: The same? No. But close.
By archermoo on 4/21/2006 7:14:46 PM , Rating: 2
quote:
I completely agree with you. The press has no right to create an illegal protected backchannel to break civil law. Now if someone wants to challange the constitutionality of this law on trade secrets based on some first amendment arguement more power too them. But as the law sits Apple is right...


In what way have they created an "illegal protected backchannel to break civil law"? The members of the press have the right to protect their sources. If those sources are are discovered and can be proven to have broken a law, they will be held accountable per whatever laws they might have broken. Telling a member of the press about something doesn't mean you aren't accountable for your actions, it just means that the press can report that information without having to identify the person who gave it to them.

So no, as the law sits Apple is not right. Unless you are talking about a different statute than the one previously posted covering Trade Secrets. I don't remember seeing any provision of that law by which members of the press are forced to reveal the identity of confidential information sources. Over what is likely no more than a civil matter they do not have the right to abrogate the first ammendment of the constitution.


RE: The same? No. But close.
By drwho9437 on 4/22/2006 3:40:47 AM , Rating: 2
I see nowhere in law that says freedom of the press means the press is allowed to protect sources. Freedom of the press is the right to have an opinion contrary to what the government wants. Freedom of the press in no way indemnifies the press from being an accomplice in breaking criminal and civil law. To be clear what I mean by the backchannel remark, I mean if you as a member of the "press" and anyone can tell you anything and have no fear of ever having their identity revealed then no secret is safe, no government, or civil one. Didn't the NY times reporters or was it Time, have to reveal sources for a CIA leak (it was something like that). To my interpertation it doesn't matter if it is national security or your lemonade receipt, if you break fed criminal law, or civil law. The law is the law, to create a means by which people can break the law, and not be exposed because of "freedom of the press" is to create a backchannel. To me this is not freedom of the press, and I am not aware of any presedent that contradicts my view, though I welcome someone more informed to point one out.


RE: The same? No. But close.
By drwho9437 on 4/22/2006 3:46:18 AM , Rating: 2
I see nowhere in law that says freedom of the press means the press is allowed to protect sources. Freedom of the press is the right to have an opinion contrary to what the government wants. Freedom of the press in no way indemnifies the press from being an accomplice in breaking criminal and civil law.

To be clear what I mean by the backchannel remark, I mean if you as a member of the "press" and anyone can tell you anything and have no fear of ever having their identity revealed then no secret is safe, no government, or civil one. Didn't the NY times reporters or was it Time, have to reveal sources for a CIA leak (it was something like that). To my interpertation it doesn't matter if it is national security or your lemonade receipt, if you break fed criminal law, or civil law. The law is the law, to create a means by which people can break the law, and not be exposed because of "freedom of the press" is to create a backchannel. To me this is not freedom of the press, and I am not aware of any presedent that contradicts my view, though I welcome someone more informed to point one out.


RE: The same? No. But close.
By Oxygenthief on 4/21/2006 3:15:02 PM , Rating: 2
I am glad that at least one person here has the common sense to read the constitution and it's ammendments before voicing their opinions, kudos Weaselsmasher.

To the other guys here trying to play devils advocate, my god, get a life. Apple has a legitimate issue here and YES a crime is being committed.

For those who think that press informants do their "informing" simply because they want to help spread the word of Apples wonderful products.... WAKE UP! Money makes this world go round, more than likely the press is funding individuals who provide such information just like they fund frelance photographers. The press knows they are untouchable so they have no problems forking over the money for information.... its a common practice and is common sense.

With that said, read paragraph 3. I honestly don't know how every press organization gets away with this considering how it is worded but I am no lawyer. But it does clearly state that if the person informing the press is receiving any money they are committing a crime. Since Apple will not identify and therefor investigate whether one of their employees is being paid due to the tight lips of the press the press should be held accountable.

That in itself is enough of a reason for Apple to go to court. In essense it is the same as aiding and abetting a criminal.

Someone should pay the price regardless, and if the press feels compelled to release trade secrets to the public and defend their criminal sources, Apple should have the right to sue for damages caused by such a release. Hell, people have sued for less. At least this way no one's can question if rights are being infringed upon.


RE: The same? No. But close.
By TomZ on 4/21/2006 3:31:12 PM , Rating: 2
quote:
I am glad that at least one person here has the common sense to read the constitution and it's ammendments before voicing their opinions, kudos Weaselsmasher.

I am sad that the quoted law doesn't seem to apply to this case, for the reasons stated, and that you conveniently ignored that. Where in the story does it say that Apple thinks its employees are getting paid to disclose trade secrets? This is pure speculation on your part.
quote:
To the other guys here trying to play devils advocate, my god, get a life. Apple has a legitimate issue here and YES a crime is being committed.

And what is your proof of this? Proof by strong assertion?
quote:
I honestly don't know how every press organization gets away with this considering how it is worded but I am no lawyer

Any chance that the reason is that your conclusion about applicability is incorrect?
quote:
Someone should pay the price regardless, and if the press feels compelled to release trade secrets to the public and defend their criminal sources

Again, breaking an employment contract is a tort, not a law. Are you trying to prove a crime was committed by repeated assertion?

I agree that Apple's use of the courts for this issue is justified, because apparently contracts, and possibly even laws, were broken. But I think most folks here have concluded a "crime" was committed and are thus using that to justify erosion of the press' protection under the First Amendment. My view is that, from what (little) we know about this, that Apple's argument is unjustified. Breaking a contract is not the same as breaking a law, period.


RE: The same? No. But close.
By archermoo on 4/21/2006 3:55:48 PM , Rating: 2
quote:
For those who think that press informants do their "informing" simply because they want to help spread the word of Apples wonderful products.... WAKE UP! Money makes this world go round, more than likely the press is funding individuals who provide such information just like they fund frelance photographers. The press knows they are untouchable so they have no problems forking over the money for information.... its a common practice and is common sense.


Ah, someone else who needs to read more carefully. Whether or not someone profited isn't the only test to determine if the law is applicable. It has to be shown that it was done either intentionally to harm, or with the knowledge that it would harm the owner(s) of the trade secret. So whether or not people were paid for their leaked information, if they intended no harm and/or didn't think it would harm the person or company that owns the trade secret then the statute doesn't apply.

As I've said before, if any of the people that leaked information to the press indeed broke any law, they should be punished for it. If they broke their employment contract, they should be fired for it. However the members of the press are in no way obligated to identify those people.


RE: The same? No. But close.
By michael2k on 4/22/2006 2:27:29 AM , Rating: 2
What if a bank employee revealed your pin * account number, or credit card number and social security number?

What crime was committed here?

Oh right, the crime is when someone else reading this news steals your money and commits fraud in your name.

So in the same sense, when someone publishes Apple's information, no crime is committed except that competing companies who see this can act on it to prevent Apple from successfully releasing the product; in effect, steal's their market and product.


RE: The same? No. But close.
By TomZ on 4/22/2006 5:31:32 PM , Rating: 2
I think you're basically getting the picture.

Yes, fraud is a crime, but no, a company being able to make use of information leaked to the press about its competitor is not a crime. How would the latter be any different than the company acting on any other information it legally accesses?


By PLaYaHaTeD on 4/21/2006 1:27:51 PM , Rating: 2
It seems to me that too many people have gotten comfortable with our freedom. It is as if they cannot comprehend the value of what they have. I guess when some are born with a silver freedom-spoon in their mouth, they don't realize when to jump out of the pot that is slowly coming to a boil.


By hiscross on 4/21/2006 3:24:51 PM , Rating: 2
Rich white people who think they are above he law.Stealing is stealing. Hope Apple wins this one.


By Xavian on 4/21/2006 3:57:59 PM , Rating: 2
The guy above, was talking about your kind, bron with freedom and simply do not defend it when it is being worn away. Apple , no company should be able to erode the rights of the press or citizens. Agreeing with apple, purely because it is apple is folly. Remember the employee who leaked information about cigerettes? if apple wins this case, the guy who leaks the information about cigerrettes would be lumbering in jail for letting the world know how harmful they really were.

If this thing goes forward, there would be truely nothing to keep companies in check (since clearly the government doesn't do anything about companies slowly draining the rights away). I suppose the silver-spoon of freedom has to be taken away before those with it understand its true value.


?
By Stoene on 4/21/2006 12:06:41 PM , Rating: 2
The 1st amendment gives the right of free speech, but I don't think the right to not tell who leaked info. Didn't a reporter stay in jail for contempt of court for the same thing over Valorie Plame?




RE: ?
By Brainonska511 on 4/21/2006 12:18:09 PM , Rating: 2
I think some cases, it is fine to keep the identity of your source hidden, but in others, such as cases of National Security, they should not be allowed to keep sources hidden when inquiries are made.


RE: ?
By hyperbolicparody on 4/21/2006 12:21:20 PM , Rating: 3
The 1st Amendment DOES give reporters the right to protect sources. Freedom a Speech is only a small portion of the First Amandement, since the overriding reason it exist is Freedom of the PRESS. A court compelling a reporter for confidential sources of information interferes with a reporter's ability to report.

Imagine you are a reporter, and are approached with evidence of corruption within the higher levels of local government. If you write a story using the info, you are going to compelled in court to reveal your source. If you don't write the story corruption continues. What do you do? Many reporters (including my father) have decided to write the story and sit in jail. Even though public sentiment usually gets them out after a while, sources are closely guarded and protected, and it's a matter of principal.

I hope Apple realizes what it's biting off. The EFF may not be a particularly formitable foe, but I would personally never want to take on the Associated Press. Apple may be a pop-culture icon, but the AP is the most connected and best lawyered group in the country. Add in that you have some MAJOR media companies which tend to follow the AP in such matters...

It's the legal equivalent of RIAA vs. University of Pennsylvania a few years ago, corporate entity with less money and fewer lawyers takes on legal powerhouse with almost infinite legal resources at it's disposal.

I hope Apple gets detroyed in a similar fashion.


What a stupid comparison
By KBunn on 4/21/2006 1:01:15 PM , Rating: 2
Nobody here is saying that all sources should be disclosed. Not even close.

When a source is revealing the illegal actions of others, nobody in their right mind is suggesting that they shouldn't be protected.

In this case the "confidential source" wasn't revealing an illegal act of others. S/he was committing one. By leaking the info, the source was breaking a legal obligation. And should be prosecuted to the full extent.


RE: What a stupid comparison
By hyperbolicparody on 4/21/2006 10:24:10 PM , Rating: 2
Yes, people are. Sources are sources are sources, they are all the same. Do some more research and you will find ample example of why that is so.

You CANNOT draw the line at who is committing what. When stories were leaked about tobacco companies knowing exactly what smoking did to smokers, while saying the opposite in public, those people were breaking NDAs they signed for employment. Now, are you saying that those reporters who ran with those stories should have given up their sources?

You are also missing that NO crime was comitted, none whatsoever. Even if you COULD classify the information shown on the site as proprietary trade information...it's NOT ILLEGAL TO SHARE IT. Why do you think they make you sign an NDA when you work for such a company? It is a CIVIL matter. Same as me suing you for erecting a fence around your property because it obstructs my view, only on a larger scale.

Imagine if I were to win, and set precident. Then EVERYONE could start suing over fences, and eventually no fences get built. Pets run rampant and shrubbery has no backdrop. OH THE HUMANITY!

On TOP of that, I'm from Mississippi, where until the early 90's most forms of corruption weren't illegal. Things illegal in most states aren't illegal in Mississippi. Reporters have been thrown in jail for writing about kickbacks and inappropriate behavior that made people look bad...but was perfectly legal. Are you trying to imply that simply because the money or items changing hands doesn't constitute illegal behavior that the sources should be revealed? What a stupid comparison...except for the fact it isn't. Look it up, most corrupt state in the union.

Of course, most people out there don't care about this sort of stuff. It's only when they complete the process of stripping you of your rights that you complain. Did ANYONE write to their congresspersons about the DMCA? I did, and I was one of HOW many? now HOW many people are whining about it?

Who cares WHAT freedoms they try to take, just STOP THEM FROM TAKING THEM.


RE: What a stupid comparison
By michael2k on 4/22/2006 2:23:49 AM , Rating: 2
Is it illegal for ThinkSecret to publish your credit card number and social security number?

What if they obtained that information from someone who legitimately has access to that information; say a bank employee?

Then compare to Apple's situation:
ThinkSecret publishes information that, in the hands of Creative (a sound/music company) would upset Apple's investment in Asteroid. ThinkSecret publishes information that, in the hands of a stranger (with your credit card & SSN) would upset your financial health.

Who has done anything illegal in either situation?
Now you, like Apple, try to find out from ThinkSecret where they obtained such confidential information, and in doing so you subpoena their ISP, with the ultimate goal of prosecuting the bank employee with access to your information.

I understand what you are talking about, except you are applying it to a corporate citizen instead of a government body. When you talk about corruption you are talking about the abuse of power by people with privilege. In this case I think Apple is exercising rightful power given to them by the state, and not abusing any power not given to them.

If TS were publishing information about how Apple was rigging the voting system or contaminating the groundwater I would agree with you. However since this is instead about Apple's internal business operations, I disagree with you. One affects the public, and the other is the public affecting Apple.


RE: What a stupid comparison
By TomZ on 4/22/2006 2:30:00 PM , Rating: 2
quote:
Is it illegal for ThinkSecret to publish your credit card number and social security number?

No, not illegal. Bad move for them as a business, but not illegal. Of course, if this caused you financial harm, you could sue for damages. But no crime was committed.


RE: ?
By kristof007 on 4/21/2006 12:23:00 PM , Rating: 2
"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..."

I think it kinda says it will give the press the freedom of speech too. I think there is another law that was created along the line which gives the press a plethora of powers and protections. I don't think it was among the Bill of Rights though.


RE: ?
By archermoo on 4/21/2006 12:39:11 PM , Rating: 2
"Congress shall make no law ... abridging the freedom of speech, or of the press; ..."

If sources of sensative information did not know that their identities would be protected, they would not bring that information to the press. And then the press wouldn't be able to do their jobs. Laws that would force members of the press to reveal their sources would be laws that abridge the freedom of the press, and are therefor prohibited by the first ammendment.

And no, it doesn't say that the press has freedom of speech. It says that the government cannot make laws abridging freedom or speech or freedom of the press, among other things.


RE: ?
By mpeny on 4/21/2006 12:44:20 PM , Rating: 2
Huh? I don't understand your reasoning and comparison.


RE: ?
By archermoo on 4/21/2006 12:54:03 PM , Rating: 2
Okay, what part confused you?


RE: ?
By mpeny on 4/21/2006 2:50:03 PM , Rating: 2
nm. it was supposed to be for another post but it appeared below yours. ugh.


RE: ?
By Bill Tuttle on 4/21/2006 1:05:34 PM , Rating: 2
Ok, it's real simple: The BoR says the Government cannot make law to limit free speech. The BoR is primarily a document describing limits on the GOVERNMENT. Nor does it say there are no cosequences for saying/printing what you like.

This is not about the government limiting anyone's free speech (they've already abused that with that heinous McCain/Feingold garbage). This is more about theft than anything. Knowingly suppressing the identity of a thief (be it material goods or intellectual property) is as good as being an accessory to the theft.


RE: ?
By archermoo on 4/21/2006 1:13:12 PM , Rating: 2
You are correct that it isn't about free speech. It is about the freedom of the press. And you are correct, the bill of rights describes limits on the government. Apple is trying to get the government to force the members of the press to reveal their sources. The first ammendment disallows the government from doing so, except under limited circumstances. Because a large corporation wants them to isn't one of those circumstances.


RE: ?
By michael2k on 4/21/2006 10:18:14 PM , Rating: 2
If archermoorumors.com published your credit card number and social security number online and you believed you could find out who leaked it to archermoorumors.com via a subpoena to archermoorumors.com's email providers, would you be wrong in doing so?

It's not about size, it's about right; I think Apple is in the right to get this information in the same way you would be right to do so to prosecute whoever stole your credit card and SSN.


RE: ?
By michael2k on 4/21/2006 10:15:31 PM , Rating: 2
Except that it doesn't apply here.

1) Apple is not a branch of government.
2) Apple is not acting in any manner to suppress speech

In terms of "chilling effect", Apple is trying to enforce valid contract law. Someone signed an NDA and then violated it when speaking to "the press". If we were finding about how Apple had rigged voting machines, then yes this speech is important to protect; instead we are finding out about new Apple products, and this speech is merely interesting and not vital.

So Apple may be chastised for not keeping a clean house, but I don't think they can be blamed for attempting to nose out the leaks via subpoena. It's just another tool in their arsenal of "contract enforcement".


NDA's are not valid agreements
By Christopher1 on 4/22/2006 1:02:57 AM , Rating: 1
Frankly, NDA's are not valid. Why? If you see a crime that your boss is doing, like stealing private papers from another company, by your NDA you would not be able to tell the police that, therefore your boss would get away with "industrial espionage", which is a CRIMINAL crime.

There is also the possibility, that by revealing this information, someone halfway around the world looks, spits his coffee and says "Those F***er's! They stole that idea from me and my patented technology!"
And they would NEVER have know if that person didn't leak that information.


By michael2k on 4/22/2006 2:17:44 AM , Rating: 2
Bear with me on this logic here:
An NDA is a mutual agreement that you are made privileged to information and that you will not share that information.

Now imagine this: Someone acquires your credit card number and social security number, say it is your bank. As a condition of their employment the loan officer who has access to this information is not allowed to share this information.

Now say they do share this information (break their NDA) with their best friend who publishes this on a website (journalist).

What recourse do you have? If you tried to subpoena the ISP to get the documents the blogger has you would be doing something very similar to Apple.

Do you see why this action isn't wrong? Apple's trade secrets (like their next iPod, their next PowerBook, whatever) are like your credit card number and social security number. If a blogger got access to, say, the next iPod and instead of publishing it online sold it to Creative, would it be illegal enough for Apple to pursue the leak?


RE: NDA's are not valid agreements
By michael2k on 4/22/2006 2:31:13 AM , Rating: 2
Wait, leaking trade secrets is "industrial espionage" too.

Imagine Creative Labs, a competitor, reads ThinkSecret and uses this information about Asteroid to their advantage. How is that effect not identical to "employee leaks crucial information to a competitor"?

Let me put it another way: An NDA is a social/civil contract. I give you private information, you agree to keep it secret as a condition of your employment.

Here's an example of an NDA in a different setting: A bank employee will not share your credit card number or social security number as a condition of their employment. Is that not valid?

So when they publish all these social security numbers and credit card numbers (including yours), does that mean they have done nothing wrong? That the bank shouldn't be able to fire them for this? That they shouldn't be able to investigate them for this?


RE: NDA's are not valid agreements
By TomZ on 4/22/2006 2:32:50 PM , Rating: 2
Your notion of "right" and "wrong" doesn't allow you to accurately reason about the law. None of the things you've stated are a crime. Breaking a contract is not illegal - it is not a crime. Laws are separate from contracts.


RE: ?
By peternelson on 4/23/2006 6:38:53 AM , Rating: 2

I don't think the proposal is to limit the freedom of the PRESS.

If people want to leak a story they can already do so ENTIRELY CONFIDENTIALLY. eg by placing the incriminating documents or unpublished product release photocopied in an envelope and mailed somewhere to someone who will then remail it to the newspaper, tv station or whatever.

There is no way the press would know who their source was.

Where an employee has an interest in exposing corporate bad behaviour this will do it without them being identified.

If their motivation was to leak a story for money, that is different. One then has to question their loyalty to their employer. It's a two way contract of employment. If you don't trust your staff then the only solution is give no single employee the big picture. Ideally your staff should behave so that your trust is well-founded. Quite rightly if you act in a way as to damage the company (except in rare cases of the public interest) that should be grounds for termination.

I think it's good that Apple are probing the bounds of law. Even if it is not retrospective, it might establish a "going forward" principle that in future people who leak stories may be identified unless they do so in a way which makes them untraceable. I think stories will still leak, but it should take some of the corrupt financial motivation out of it. eg if I leak a product so as to damage my competitor, isn't that like selling our weapons plans to the enemy? Not very loyal in my view, even if you get paid for it.


RE: ?
By peternelson on 4/23/2006 6:41:57 AM , Rating: 2
I mean leak TO COMPETITOR damaging MY EMPLOYER (for money or a job offer from that competitor).


strict constuction
By drwho9437 on 4/21/2006 6:03:03 PM , Rating: 2
"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..."


Ok I read that as saying the GOVERNMENT can't tell people what to say, or what the press can write. However, "free speech", and "freedom of the press" do not give the parties involved the right to break the law. That is here, revealing trade secrets in violation of a signed contract. I feel that Apple has the right to request a court order for Journalists A to sign a document that says either: the person who gave me this information doesn't work for you, or he does, here is the evidence that why breached civil law. Its just like putting the reporter on the witness stand. The only difference is you don't know who you are going to put on trial yet. Does this make it harder for the press to get inside information about companies, absolutely.


However, if you don't like it, you should challange the constitutionality of a the governement enforceing a no discloser clause in a contract. And not assert that the press has the right to create a protected channel for breaking contracts for its own benefit.


Ok, I'm a little confused.
By Nightskyre on 4/21/2006 12:34:22 PM , Rating: 2
I actually support Apple on this issue. I understand the potential ramifications of altering freedom of the press, but at the same time, it seems like an unfair double standard that the same people calling out Apple for demanding its right to privacy are the same people calling out Bush for impinging on their right to privacy. That doesn't make sense.




RE: Ok, I'm a little confused.
By TomZ on 4/21/2006 12:39:40 PM , Rating: 2
I disagree - penetrating through the press' freedom of speech protection for the purpose of a company to discipline its employees is not justified. The reason needs to be compelling - but Apple's reason is not. I think the courts will rule the same.


RE: Ok, I'm a little confused.
By archermoo on 4/21/2006 12:42:50 PM , Rating: 2
Easy to clear up the confusion. People aren't upset at Apple for trying to protect it's "privacy", as much as a publicly held corporation has any. They are upset at Apple for trying to force members of the press to reveal confidential sources. Which is to say violate the first ammendment proctection the press enjoys.

So it makes perfect sense that people upset about their privacy being invaded would also be upset about the freedom of the press being attacked. See? Perfectly straightforward.


RE: Ok, I'm a little confused.
By Nightskyre on 4/21/2006 12:48:47 PM , Rating: 2
So you're saying, if you were Apple, that you'd just go hire a PI instead.


RE: Ok, I'm a little confused.
By archermoo on 4/21/2006 12:56:05 PM , Rating: 2
I said nothing of the kind.


RE: Ok, I'm a little confused.
By ninjit on 4/21/2006 1:08:34 PM , Rating: 2
I agree, and this is what the court is for, to determine when use of the 1st Amendment protection is reasonable.

In the case of the White House leaking the identity of an undercover operative, it isn't reasonable to protect the source, because what they did is wrong.

In the case of a whistle-blower revealing corruption in a government or company, it is reasonable to protect the source's identity.

And in this case with Apple's tradesecrets, I think they do have every right to know who in their midst leaked the information to the press.
On the other hand, if it was someone who revelaed that Apple used chained monkeys to hand enter every new song into the iTunes database, they don't have a right to know that persons identity.


RE: Ok, I'm a little confused.
By ninjit on 4/21/2006 1:09:52 PM , Rating: 2
*Sigh*

I meant to reply to "You seem to forget, that it's not an absolute right" below


RE: Ok, I'm a little confused.
By peternelson on 4/23/2006 6:45:46 AM , Rating: 2
I agree with what you say.


RE: Ok, I'm a little confused.
By PLaYaHaTeD on 4/21/2006 1:16:00 PM , Rating: 2
Apple needs to handle their own shit. If the problem is internal, they should deal with it internally. We don't need to change our laws and give corporations more rights than they already have.


RE: Ok, I'm a little confused.
By GoatMonkey on 4/21/2006 1:28:35 PM , Rating: 2
I can see your point. That employee is most likely breeching his contact with Apple by providing this information.

However, Apple is pretty much shooting themselves in the foot at the same time. These fan sites are where the rabid Apple fans who build up the demand for their products go to virtually worship their products.



RE: Ok, I'm a little confused.
By drwho9437 on 4/21/2006 6:10:17 PM , Rating: 2
The press has no such pertection. I will quote myself above, the press has ZERO right to create a protected backchannel for breaking civil law. ZERO. They have the right to publish anything that anyone tells them. If the people who told them the infomation broke the law in revealing it, than that person goes to jail. The end. No all the press can go cry because no one will want to go to jail for talking to them. But that isn't the freedom of the press that has been crushed its how hard their job is.


This is where your money goes
By GTMan on 4/22/2006 5:42:12 AM , Rating: 2
If you support Apple by purchasing their computers. This is where they spend the profits.




RE: This is where your money goes
By Weaselsmasher on 4/22/2006 2:52:24 PM , Rating: 2
Indeed.

I think I'll buy that MacBook I've been wanting today. I've been on the edge... buy it because I miss my old PowerBoook G4... don't buy it because it's a 1.0 and still has some hardware bugs to deal with... buy it because I can now get away from Windows except for the one or two apps (um, games) I can't get for the Mac, but have only one computer to deal with... don't buy it because it's two thousand bucks...

...buy it because Apple takes intellectual property laws seriously, and if the "information welfare" people get their way then no garage-inventor will ever make one penny ever again as their work is stolen by big corporations.

Sold.

THINK, people. If this "intellectual property must die!" attitude is allowed to become law, the only people who will ever be able to bring a product to market are the big companies with preexisting distribution pipelines, manufacturing facilities, and multimillion dollar warchests. All they need do is obtain YOUR ideas by any means they feel like, then productize them and have them in every Best Buy months... years... before a small-timer like YOU could make it happen. And you get NOTHING.

THINK. Apple is defending YOUR rights in the same breath it defends its own. The position of "it's not okay to steal research and publish that stolen material" is a precedent that protects everyone who ever invented anything, or who might have a brilliant idea for some new technology or product.

Who knows. That might even be YOU, someday.


RE: This is where your money goes
By TomZ on 4/22/2006 4:47:42 PM , Rating: 2
Bullshit. Apple is not defending my rights to do anything. They are looking to crack the First Amendment's protection for the press, in order to get information so their HR deparment can reprimand and/or fire the individual(s) that leaked the information.

Most companies have no problem keeping trade secrets a secret. If you ask me, probably the real issue is that within Apple, they are doing a sloppy job protecting their secrets and/or getting the point across to their employees how important it is to keep this information secret.

If/when Apple loses this case, I don't see how my IP rights are eroded one bit. Apple will lose because they are trying to make an argument that makes no sense.

So, don't give us that bullshit fanboy talk like Apple is some crusader trying to protect the "little guy." They don't give a hoot about you or about me. Buy your MacBook because you want to - the rest of your argument is meaningless and illogical.


Whoah!
By kristof007 on 4/21/2006 12:01:24 PM , Rating: 2
Now that IS big. I don't think Apple will be able to win it. Really depends on which people get more support. But just cause Apple wants some names the world won't stop. Seems to me like this is going to go to the Supreme Court.




RE: Whoah!
By Wwhat on 4/21/2006 12:52:27 PM , Rating: 2
Supreme court? uhm how about they throw out the case and charge apple with wasting people's time instead of getting the supreme court involved.
This is like me going to the court claiming I own texas because a little angel told me so in a dream, a silly nonsical insane thing that should not even get into court.


Maybe, I am Jaded.
By SilthDraeth on 4/21/2006 3:22:41 PM , Rating: 2
"According to the court case, Apple is not actually going after the sites themselves, but is going after a ruling that would allow it to obtain information on who leaked information to the websites. Apple believes that its employees are accountable for the leaked information, and it wants rights to put down the hammer.

If Apple wins the case, it could jeopardize the rights of journalists everywhere. "

Being, in the military, and working in communications, I am am pretty sure, that allowing companies to investigate who has leaked documents etc, would not jeopardize journalists everywhere.

For example, lets say said employee leaded information to a journalist, the journalist published the information, then, another company in the same line of work took that information, and utilized it.
Company A's idea is stolen and used by company B, before company A is able to file for patents etc.

Or, in another example, an employee of company A hands documents to company B under the table, or sells the information.

As for my communications background comment, it is relative, if Apple has a consent to monitoring policy in effect. While it is illegal to specifically target certain individuals for monitoring, even in the military, it isn't illegal to monitor everything, and review what is going on, on your network.

So, for example, in Apple's case, if they believe the transgression was committed online, Apple, should be able to get a court order, to have an outside forensic investigator reveal the source of the information, since obviously the destination isn't what Apple is targetting, and it is pretty obvious who the Destination is.

In no way does this violate the press, the press does not possess a NEED TO KNOW everything, and they have no inherant right to insider information, nor the obligation to even report the information to the public, baring in mind that it is not a threat to the public,but once it is obtained, then it is obviously up to their discretion, what to do with it.




RE: Maybe, I am Jaded.
By DeathSniper on 4/21/2006 8:55:58 PM , Rating: 2
Well said, I couldn't have agreed more.


By segagenesis on 4/21/2006 4:56:01 PM , Rating: 2
I'm surprised nobody here remembers or mentioned Deep Throat. No, not the movie... the man who brought down the presidency of Richard Nixon. There was a big fuss about this back then when the Washington Post refused to cite its source for Deep Throat on the Watergate scandal. So, Apple has thier panties in a bind over information that might be one of thier future products?

Mark Felt must be cringing right now at the thought if this kind of case happened 30 years earlier. Apple either needs to improve its own internal security in regards to "trade secrets" or go suck on its pacifier some more. You don't see the (genuine) forumula for Coca-Cola or the secret recipie for KFC on the Internet because they actually keep it secret.

It's not really that hard Apple to keep good secrets, don't attempt punish an entire country of journalists just because you have no idea what a safe is. People leaking information? Read up on what "minimal access rights" means sometime then. This whole deal is borderline insanity and I can only hope they lose. Apple has thier right to keep company information private but ripping our Constitution to shreds over it is unacceptable.




By michael2k on 4/21/2006 10:10:56 PM , Rating: 2
Um, three points of relevance:
1) Apple is not a government agency misusing it's power
2) Apple has the right to subpoena the email providers, just like I have the right to sue you; it is up to the email providers to comply or refuse (Google refused the government for example) and up to the legal system to compel or allow.
3) How is this "punishing" a journalist?

You bring up an invalid comparison with Mark Felt; Mark Felt broke the law to serve the public interest. Joe Programmer broke the law to serve the interested public.

If Mark Felt had instead leaked information on Nixon's sexual orientation to the public or Joe Programmer had leaked information on Apple rigging voting machines then you would have a totally different scenario.


Obstruction
By tjr508 on 4/21/2006 8:13:31 PM , Rating: 2
Trade secrets are to be protected. Nobody has the right to keep a "source" secret if they are a witness to a felony. It is called obstruction justice. If the law were otherwise then there would be no such thing as obstruction of justice because any whitness to any crime could just claim they were uncovering a "story." "Working" for the "media" grants you no special rights. Although a trypcal case of obstruction is very hard to prosecute, these people who publish trade secrets make the job very easy as all the evidence is already published. Finally, uncovering trade secrets could potentially disrupt the stock market in an unfair manner. I have no problem with speculation, but waiting for official statements puts every trader on an equal playing field.




RE: Obstruction
By TomZ on 4/22/2006 5:26:12 PM , Rating: 2
Nice job confusing the facts to support your argument.

You are saying that Apple's case involves a felony - which it does not - at least you can't conclude that from the information reported by the media thus far. No crime has been committed, based on the information released so far.

You are also wrong in saying that working for the media grants you no special rights, at least in the U.S. The First Amendment protection for the press has been discussed in the posts above. The First Amendment is the law and it does provide special protection for the press (media).

Where did you get the idea that there is such a thing as an "equal playing field" in the stock market? Don't you think there are lots of folks that are trading with tons more information than you and I have? I suppose you probably also believe that "life is fair"?


Irony
By Mclendo06 on 4/21/2006 12:01:28 PM , Rating: 2
I'm going to ride the fence and not take a side here, but I do find it terribly ironic that the media is the primary outlet for information concerning this issue. I know that dailytech articles are more tech editorials than news reports and are regularly interjected with author opinions, but I don't see how any media outlet could possibly report on this issue without some sort of conflict of interest.




Sounds like a joke, because..
By Griswold on 4/21/2006 3:34:26 PM , Rating: 2
... even if apple wins here, it wouldnt stop any future leaking of info. Just leak it to a site that is run and hosted by non-americans. Believe it or not, there are countries out there, besides the USA, where the press enjoys alot of protection. And some (foul) apple wont succeed changing that - as a forgein company.

The joys of globalization and the internet.. it sometimes bites them corporations right back in the ass.




Nothing New
By Chiisuchianu on 4/21/2006 4:23:30 PM , Rating: 2
Not much to see here, just another day in the life of an American. Corporate scum chipping away and rewriting the law of our land as usual.




so what if they win
By vladik007 on 4/22/2006 12:46:22 PM , Rating: 2
so what if apple wins ?! Small sites like appleinsider and thinksecret will move their server overseas and apple can start suing all over again and so on and so on....... do they really think they're gonna stop this ?




Around and around
By Future Daydream on 4/23/2006 7:10:26 AM , Rating: 2
It's enough to make your head spin. An NDA while a civil contract is also a contract to keep in mind that industrial espionage is a crime. That is what this amounts to. While the employee did not go to another company with the information they may as well have.

It seems as if too many people are getting stuck on one aspect of this and can't think objectively.




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