Free speech? Company rights? Who wins?
Posted by Dennis Sellers 
Apr 12, 2005 at 12:10am
On Jan. 21, I opined that Apple wasn’t a “bully” for its suing of Mac enthusiastic sites if, indeed, those sites did participate with individuals who stole the company’s trade secrets. I’ve come under some criticism for my comments, including being accused of “kissing up” to Apple. Not true.
Apple and I have a great relationship. They try to ignore me, and I write what I want.
Anyway, I thought it time to revisit the issue since a dozen news organizations, the Reporters Committee for Freedom of the Press and associations of Internet Service Provides (ISPs) have entered the fray, filing papers supporting the online publishers’ request that a California judge reconsider his refusal to shield the publishers from Apple’s inquiries. I won’t reiterate the details of the lawsuits again, but you can find ‘em in yesterday’s news article.
An amicus brief filed by associations of Internet service providers and signed by various news agencies argues that “the First Amendment protects journalists from liability for publishing even illegally obtained information on matters of public interest and importance where the journalists did not participate in the illegality, and … allegations of illegality do not permit a court to ignore the protections …”
The filing states that the Superior Court judge inappropriately decided that trade law trumps journalists’ protections under the First Amendment and the California Shield law. It argues that publication of trade secrets by journalists who didn’t violate the law in obtaining them is protected by the First Amendment and that the mere allegation of illegality is insufficient to breach the reporter’s privilege.
I won’t play lawyer and argue the fine points of laws protecting trade secrets verses laws protecting journalists and freedom of speech. My two cents is this:
If the Web sites involved got their info through digging and investigating, then they’re free to publish the info they’ve found. In other words, if they dug through Apple’s dumpsters, found info on Asteroids and iMac G5s, then they’re (IMHO) home free to tell the world.
However, if the folks at the sites in question dealt with Apple employees, ex-employees or others who were violating non-disclosure agreements and illegally spilling the beans on Apple’s trade secrets, then that’s wrong.
I don’t know how the sites got their info. I’ll leave that up to the courts to decide. And I’m not going to jump into the fray on what constitutes a true “news site.” That’s a topic for another column.
But when it comes down to the Mac sites vs. Apple, it ultimately seems simple to me: IF employees leaked info, violating non-disclosure agreements and possibly California’s Uniform Trade Secrets Act, all parties who knowingly participated were wrong. IF no info was illegally obtained by the three Web sites, then they’ve done nothing illegal.
That’s my two cents’ worth. Yours? Write me at dsellers@macsimumnews.com
Also, there’s a new Macsimum poll and it continues a recent trend in our polls. Recently, Business Week 2.0 ran an issue with the cover story, “What’s next for Apple?,” which speculates on future Apple products. One of those is the wireless iPod, which would use Bluetooth to sync with your computer without a docking station. Also, per Business Week 2.0, the wireless iPod would let you tap into the iTunes Music Store from a public network (your local Starbucks, for example) and more.
Lee Says:
Quote: “However, if the folks at the sites in question dealt with Apple employees, ex-employees or others who were violating non-disclosure agreements and illegally spilling the beans on Apples trade secrets...”
I believe thats called “investigating.”
The vast majority of news is produced by people taliking to other people.
Posted on April 12, 2005
Joe Says:
Quote: “I believe thats called investigating.
“The vast majority of news is produced by people taliking to other people.”
But talking about something that has a NDA attached to it is called breaking a contract, and subjects one to legal liabilities. You want to play that game, you have to take your chances. Now if the rumor sites were based in a country where U.S. courts and laws were not observed, then you might still get away with it…
Posted on April 12, 2005
Ken Says:
My only fear in this is that it COULD set a dangerous precedent in that if a company weakly ties some wrongdoing to “privileged information” then THAT is what might affect the outcome of whistleblower cases.
--Yes, there may have been “protein matter” in the juice, BUT since it was a part of our ongoing efforts to produce profits and in effect a “trade secret” we need to know who this person was so we can protect our business interests.--
I hope the decision is very well written so that this CAN’T be used as precedent in cases where information truly needs to be uncovered. Someone fill me in, did the sites ever state WHY this particular information would be in the public interest?
Posted on April 12, 2005
J. Scott Anderson Says:
Ken:
I agree with you completely. This is not the forum for my problems with future decisions based (wrongly many, many time) on a precedent decision. That said, I think that the judgment can be written to cover things that are not public or unlawful activities.
Let’s face it, leaking the details on iPod shuffle, Mac mini, Tiger, etc. are neither of those cases. This is truly a case of trade secrets. As such, I believe that the press does not have the protection of the law in protecting its source.
Posted on April 12, 2005
Richard Mossman Says:
First: Correct me if I’m wrong, but I thought the Apple lawsuit was about forcing the reporters (and I, personally, classify them as “reporters") to reveal who broke their NDA (if at all). It’s not about whether the reporters did something wrong in publishing the information.
If that’s so, then the amicus brief is focussing on the wrong issue.
Second: I worry that so many people refer to the 1st Amendments protection of Freedom of Speech “for journalists/reporters”. I have checked two different references on our Bill of Rights and both of them say:
Amendment I: 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.
Notice it doesn’t say “abridging the free speech of the press”. It is two clauses in one statement, “abridging the freedom of speech (comma) or of the press”. To me this says that everyone has the right of free speech (soap box orators, congressmen, farm workers, little old ladies, bloggers) and not just the “accredited” press. Just because the press is specifically named doesn’t reduce the protections given to us all.
This amendment was written during a time when everyone (and especially reporters like Thomas Paine) were being arrested for seditious rhetoric. I think we need to focus on the true wording and the “understood” intentions of the writers and apply that to today’s situations.
Thank you.
Posted on April 13, 2005
Chris Says:
Ken:
My understanding of the judge’s decision is that this has nothing to do with the “Public Interest” so the ruling shouldn’t affect “whistleblower” cases.
[] Mr. OGrady is far from alone: the public has had, and continues to have a profound interest in gossip about Apple. Therefore it is not surprising that hundreds of thousands of hits on a website about Apple have and will happen. But an interested public is not the same as the public interest.
At the hearing the Court specifically asked what public interest was served by publishing private, proprietary product information that was ostensibly stolen and turned over to those with no business reason for getting it. Movants response was to again reiterate the self-evident interest of the public in Apple, rather than justifying why citizens have a right to know the private and secret information of a business entity, be it Apple, H-P, a law firm, a newspaper, Coca-Cola, a restaurant, or anyone else. Unlike the whistleblower who discloses a health, safety, or welfare hazard affecting all, or the government employee who reveals mismanagement or worse by our public officials, the movants are doing nothing more than feeding the publics insatiable desire for information.
Posted on April 13, 2005
Chris B Says:
Americans seem to spend a lot of time talking about their rights, but not so much talking about their responsibilities.
Posted on April 15, 2005
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Dennis Sellers
Dennis has been a newspaper editor/reporter (seven years) and teacher (seven years). He has over 4,000 magazine, newspaper and online articles to his credit. He has also covered the Mac and tech industries for over a decade for such online publications as MacCentral, MacMinute and now MacsimumNews.
Kev Says:
Agree wholeheartedly with your distinctions.
Posted on April 12, 2005