EFF Joins Fight Against Apple Lawsuit 662
sutterpants writes "The BBC is carrying a story on the legal battle between Apple and free press advocates. The Electronic Frontier Foundation has joined in the fight to protect journalists from revealing their sources. Which carries more weight: the right of Apple to protect their trade secrets or the rights of journalists to protect their sources?"
UTSA and other considerations (Score:5, Informative)
http://www.washingtonpost.com/wp-dyn/articles/A793 7-2005Jan13_2.html [washingtonpost.com]
But while lawsuits against online publications are rare, he said, the Uniform Trade Secrets Act, versions of which have been adopted by about 45 states, including California, prevents third parties from exposing information knowingly obtained from sources bound by confidentiality agreements.
"Just because you don't have a relationship with the company doesn't necessarily immunize you, if you publish what you reasonably should have known was a trade secret," [Andrew] Beckerman-Rodau[, who runs the intellectual property program at Boston's Suffolk University Law School] said. "The First Amendment has been asserted more and more against intellectual property rights, but it's not faring well. Most courts haven't accepted it."
Apple doesn't really care about these web sites. They care about finding out who within the company (or contractor, etc.) is continually leaking this extremely accurate information to web sites (such as Think Secret). And no, it's not information that's "known" elsewhere. Some of these sites have got very reliable moles, and Apple wants to know who they are. Hint: yes, these are people who definitely have binding confidentiality agreements with Apple.
Regardless of whether or not Apple "should" or "shouldn't" be doing this, whether it's good PR or not, etc., if you can't see that it's wrong, legally and ethically, for these people to be leaking this information, then, well, we have nothing further to discuss. Is it journalism and free speech when you violate laws to obtain information? Ignorance of the law is no excuse...
And remember, whether or not you fundamentally *agree* with the law is irrelevant. It's either illegal, or not. (Yes, yes, sure, there's gray areas, but that's not the point I'm making. And sure, maybe these sites "fighting it" in this way is one mechanism to examine the validity of these laws, and further, the role of an online journalist and his information gathering mechanisms, what can be construed as soliciting known confidential information, what constitutes a violation of these laws in this context, etc.)
If Apple's goal is to find out who leaked this information - indeed, if it considers that information critical to its business - and there is a legal mechanism for perhaps recovering that information, is it not within its rights to file suit seeking that information, especially when criminal and/or civil laws pertinent to that very information may have been violated? You might THINK they should hire a private detective. You might THINK any laws prohibiting these sites from revealing such information are incorrect, immoral, or unjust. But those are subjects not relevant to the case at hand, unless, of course, you believe the EFF challenge is a fundamental challenge of these laws.
I'm not talking philosophy here, or whether or not government officials can/should leak to the press. This is not about the Seymour Hershes of the world and the Pentagon Papers. I'm talking about the legality of this particular case, which involves a corporate entity, not issues of "throwing reporters in jail" to "reveal sources". Note that under some conditions, journalists HAVE, in fact, violated the law, and have, properly, been thrown in jail. The concept of not revealing confidential sources isn't some high and mighty ethical concept; in fact, it's a rather selfish one: at some level, it ensures them more sources in the future. It makes them more effective as a journalist. Whether they've got lofty ideals or what have you is again irrelevant. The point is, we either enforce rule of law as set by society in this country, or we don't. And yes, we can work to change law(s), protest against them, a
Re:UTSA and other considerations (Score:5, Informative)
I'll repeat, just in case:
http://www.washingtonpost.com/wp-dyn/articles/A79
But while lawsuits against online publications are rare, he said, the Uniform Trade Secrets Act, versions of which have been adopted by about 45 states, including California, prevents third parties from exposing information knowingly obtained from sources bound by confidentiality agreements. [i.e., an NDA]
"Just because you don't have a relationship with the company doesn't necessarily immunize you, if you publish what you reasonably should have known was a trade secret," [Andrew] Beckerman-Rodau[, who runs the intellectual property program at Boston's Suffolk University Law School] said. "The First Amendment has been asserted more and more against intellectual property rights, but it's not faring well. Most courts haven't accepted it."
Just because you don't agree with the UTSA doesn't make it disappear. It remains to be seen whether the UTSA can be legally asserted by Apple, as they haven't publicly commented on this case beyond saying "Apple's DNA is innovation", etc., but the fact of the matter is that a law may indeed have been broken in the publication of information reasonably known to have been protected by a confidentiality agreement, period.
Re:UTSA and other considerations (Score:2, Informative)
I guess we have nothing to discuss, except I might call you a pompous fool who should take the stick out of your ass.
Just because something is a law, doesn't make it write. There is a long history in this country of civil disobedience against unjust, unconstitutional, or wrongheaded laws. Just because corporate interest have the power to get laws like this passed, this does not make it right or constitutional.
Re:The question is "harm" (Score:4, Informative)
I'm glad you think Third Degree burns are petty.
Stella Liebeck, 79 years old, was sitting in the passenger seat of her grandson's car having purchased a cup of McDonald's coffee. After the car stopped, she tried to hold the cup securely between her knees while removing the lid. However, the cup tipped over, pouring scalding hot coffee onto her. She received third-degree burns over 16 percent of her body, necessitating hospitalization for eight days, whirlpool treatment for debridement of her wounds, skin grafting, scarring, and disability for more than two years. Morgan, The Recorder, September 30, 1994. Despite these extensive injuries, she offered to settle with McDonald's for $20,000. However, McDonald's refused to settle. The jury awarded Liebeck $200,000 in compensatory damages -- reduced to $160,000 because the jury found her 20 percent at fault -- and $2.7 million in punitive damages for McDonald's callous conduct. (To put this in perspective, McDonald's revenue from coffee sales alone is in excess of $1.3 million a day.) The trial judge reduced the punitive damages to $480,000. Subsequently, the parties entered a post-verdict settlement. According to Stella Liebeck's attorney, S. Reed Morgan, the jury heard the following evidence in the case:
http://www.centerjd.org/free/mythbusters-free/MB_
Re:UTSA and other considerations (Score:5, Informative)
Wrong. The Uniform Trade Secrets Act law(s) in various jurisdictions may have been broken. Sure, it may all revolve around civil and contractual issues, but that's somewhat irrelevant. The reason this law *exists* is to prevent people from skirting NDAs by simply leaking information to a 3rd party.
In this case Think Secret is a 4th party and is NOT subject to the NDA.
How do you figure Think Secret is a "4th" party? It is extremely likely that Think Secret is getting its information directly from people who are themselves bound by confidentiality agreements. How does that make them a 4th party?
This is an "Apple leaking info" problem.
Yes. And it still may violate statutes to disseminate the information that was obtained. That's what the legal system will determine, eh?
If Apple wants to "out" the leaks they should create "special projects" and place their suspects in that project.
Then watch the Think Secret web site...
That's one way to do it. And they may have even already done things along those lines. But there are laws that exist that may have been violated, which you're choosing to conveniently ignore.
Re:Define "Journalists" (Score:4, Informative)
(6) "Professional journalist" shall mean one who, for gain or livelihood, is engaged in gathering, preparing, collecting, writing, editing, filming, taping or photographing of news intended for a newspaper, magazine, news agency, press association or wire service or other professional medium or agency which has as one of its regular functions the processing and researching of news intended for dissemination to the public; such person shall be someone performing said function either as a regular employee or as one otherwise professionally affiliated for gain or livelihood with such medium of communication.
New York State Consolidated Laws, Article 7, Section 79-h (a) (6) [findlaw.com]
Other relevant cases (Score:2, Informative)
http://story.news.yahoo.com/news?tmpl=story&cid=6
IN my area, a local television reporter was held in contempt and fined substantially for refusing to name a source, and the courts ruling was upheld on later appeal. A link to one of the stories on this:
http://www.turnto10.com/news/2925041/detail.html [turnto10.com]
Re:UTSA and other considerations (Score:3, Informative)
Judge Orders Journalists to Reveal Sources (Score:1, Informative)
Press vs Trade (Score:1, Informative)
1. Under UTSA, did thinksecret.com "***knowingly***" exposing information obtained from sources bound by confidentiality agreements? That is a state of mind question and a question about how the information was obtained (anonymously or did they know the source or was it overheard at the Starbucks at Stevens Creek Blvd in Cupertino).
2. There is no bar to publication of it, but there is a law against violating an TS agreement and *knowingly* publishing it.
3. Suppose I had a security clearance and I said to Jane's, "Hey, the US has a new submarine that goes 600 mph, knowing it to be true." Is that protected?
Yes, there is a chilling effect, but (while I disagree, it is the law), a majority democratic appointed Supreme Court has stated 1st Amendment protection for "commercial" speech is less than that for non-commercial (e.g. political) speech.
The questions are:
1st Amendment protection for commercial speech vs legal protection for for commercial secrets. What trumps? Obviously if it came down (and I was the judge) to a UTSA vs 1st Amendment question the Constitution wins - even though since the 1930s it hasn't always done so. But hey, that is the price you pay for big government - ignore the constitution in one case and everyone loses liberty.
Re:Free Speech? Freedom of the Press? (Score:3, Informative)
Granted many of these abuses get overturned later by courts, etc. when they are no longer "needed", but that doesn't exactly help those who were abused.
legalaity (Score:3, Informative)
I also think it would make sense. He signed NDA's (probably) and as such should have honored those instead of selling-out.
Re:The question is "harm" (Score:3, Informative)
This has nothing to do with victimization, pride in stupidity, or avoiding personal responsibility. McDonalds acted in a stupid and irresponsible way which they knew was injuring their customers. When a corporation acts in an irresponsible way, the main way to punish them and correct the behavior is through lawsuits. Since you can't put them in jail, fines are the main way that corporations are punished and their behavior corrected.
McDonald's knew its coffee sometimes caused serious burns, but did nothing to correct this, and they continued to sell the 185-190 degree coffee.
When "Grandma" was injured, the burns were so bad that "Grandma" required two skin grafts. She had 3rd degree burns over 6 percent of her body. "Grandma" initially only asked McDonalds to cover the cost of the surgeries, which they refused, and they fought "Grandma" all the way up through the courts. In the court they admitted their customers were unaware that they could suffer third-degree burns from the coffee.
McDonalds behaved incredibly unconscionably in this case, and deserved to be fined. Lawsuits are a good thing. Fines against corporations are the only way to punish companies when they behave in a way that injures people. It may be that there are occasional abuses, but they are far less common than the tort reform advocates would have you believe, which is why they keep spewing misinformation, such as misrepresenting the McDonalds case, or the cases in the href="http://www.snopes.com/legal/lawsuits.asp">S
Read about the facts behind the McDonalds incident here:
http://www.atla.org/consumermediaresources/tier3/
Why is the EFF getting involved? (Score:5, Informative)
After initially threatening to subpoena reporters directly, Apple sent subpoenas to Nfox.com, the email provider for PowerPage publisher Jason O'Grady. By forcing Nfox to hand over O'Grady's email, Apple hopes to find out who told the journalist about an upcoming product code-named "Asteroid."
"Rather than confronting the issue of reporter's privilege head-on, Apple is going to this journalist's ISP for his emails," said EFF Staff Attorney Kurt Opsahl.
In its request for the protective order, EFF points out that reporter's privileges protect the anonymity of sources regardless of whether third parties hold a journalist's records.
Aha! Now that is something a bit different, and I'm glad the EFF isn't (as the story comment implies) saying that trade secrets shouldn't be protected, because that would stupid. Apple isn't wrong for protecting it's trade secrets, but I would agree that this "innovative" approach isn't fair.
Re:UTSA and other considerations (Score:3, Informative)
It hasn't been shown that the site operators in question didn't know where the information came from. It's easy to say that they didn't, but it isn't necessarily true.
Bottom line, Apple is bringing it's weight to bear on someone in order to coerce the names of his sources, and those are protected by 1st amendment rights.
If the site operators did know, then those sources are not protected. Apple isn't trying to coerce anything that they wouldn't have the right to. It's up to one side or the other to prove that they did or didn't know where the information came from.
I say good on the EFF for stepping up on this one.
The EFF's website [eff.org] indicates that they are getting involved because Apple was suing the ISP of one of the sites in question for access to the site's email. This is a very specific reason that has little to do with most of what's being discussed here.
Re:The question is "harm" (Score:3, Informative)
You should follow the link so that you can be informed about the facts.
It was not about money. The original suit was only for coverage of her medical costs. McDonalds brought it on themselves by refusing to pay for her medical expenses, and refusing to settle out of court. Perhaps you could justify saying it was about money, so long as you qualified that by saying that it was about McDonalds' greed.
McDnalds was not just selling hot coffee. They were selling coffee hot enough to cause a 3rd degree burn [google.com]. That is a very severe burn where the tissue under the skin is damaged, and which causes scarring. It wasn't just hot, it was scalding hot. There were more than 700 claims by people burned by its coffee between 1982 and 1992. Some claims involved third-degree burns substantially similar to Liebeck's. They knew they were injuring people yet they did nothing about it. They were negligent.
Wrong rights . . . (Score:3, Informative)
There exists no right to protect a source. A journalist may be "compelled" by legal process to disclose his source, although few actually do, and simply accept the punishment for contempt.
There exists no right to "protect" a trade secret other than by doing what they did -- to sue and hope to prevail.
First Amendment rights are often implicated in these scenarios, and the right to speak and publish is fundamental. But there isn't a right to protect a source, or for a source to be protected. None.
Re:my opinion (Score:3, Informative)
I think you haven't properly read and understood your Bill of Rights.