1. TomCS on March 19, 2005 7:16 PM writes...

Oh Dear Donna. I have only just discovered your blog, and was hoping to access some more sophisticated (legally, technically) comment. And I find this. What is unfortunate is that like the others, and here I mean primarily the sloppy reporting in much of the MSM, the task of reading carefully a 13 page ruling seems to be too much like hard work.

Doubtless the ruling will be appealed, or the issues will come up at later trial, but misrepresenting a very narrow ruling as the end of free speech helps nobody, and brings no credit or credibility to EFF and its staff (who lost the case before the judge).

The judge's ruling (supporting an earlier judge who agreed to the subpoena in the first case) concerns a request to an ISP to search its records for evidence of references to an Apple technology in development. Details, lifted directly from slides bearing Apple "confidence markings" were reproduced on two websites. Apple has conducted internal investigations to identify the source, and has so far failed, and sought the help of the court. The ISP did not object, but representatives of the websites did, with EFF legal representation.

It is all set out rather clearly in the ruling, and as a non-lawyer I am nervous about summarising it. But in brief the Judge, solely for the purpose of the attempt to block discovery from the ISP, ruled that

1) the material posted was prima facie, in Californian law, "trade secret"
2) Apple were entitled to protect it, and to discover who had been responsible
3) Apple had taken sufficient steps to attempt to identify the sources before seeking the subpoena
4) the question of shield law or whistleblower protection did not arise in this case, because there was no identifiable "public interest" in making this information publicly available. He had explicitly asked counsel what the public interest was, and they had failed to answer his question.

So he assimilated the case to a simple matter of theft, and the role of the websites, prima facie, to that of a fence. He made it clear tht he considered that what had happened was potentially criminal, and went on to say

"Movants contend they are journalists. They make this claim because they seek the protection of the privilege against revealing their sources of information. Defining what is a “journalist” has become more complicated as the variety of media has expanded. But even if the movants are journalists, this is not the equivalent of a free pass. The journalist’s privilege is not absolute. For example, journalists cannot refuse to disclose information when it relates to a crime. As the Supreme Court in Branzburg stated:
“The preference for anonymity of those confidential informants involved in actual criminal conduct is presumably a product of their desire to escape criminal prosecution, and this preference, while understandable, is hardly deserving of constitutional protection.” 408 U.S. at 691."

He also explicitly dealt with the false analogies in the San Jose Mercury News, and in your piece. Again better read in context, but

"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 public’s insatiable desire for information."

I'm not sure I have any moral or political argument with any of that, but the gadarene rush of media and bloggers to defend the (probably) indefensible actions of the website operators does worry me. The balance between press rights and responsibilities is complex and important, but so far this ruling changes nothing. If the blog/open source/IT/Media community wants to fight test cases, it might choose them more carefully.

TomCS

2. Scote on March 19, 2005 11:50 PM writes...

Well, TomCS, it is nice to see that the interests of Apple's legal team are represented here. Somehow, insulting the host in the first sentence hardly seems the way to ingratiate yourself here... Anyways, TomCS makes some fascinating points and some excellent misdirection but ignores one of the the core issues, which is the over-broad language of the California Trade Secrets law:

"(d) "Trade secret" means information, including a formula, pattern, compilation, program, device, method, technique, or process, that:
(1) Derives independent economic value, actual or potential, from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and
(2) Is the subject of efforts that are reasonable under the circumstances to maintain its secrecy."

Or as the San Jose Mercury News so succinctly put it, "Anything [companies] don't want published could potentially qualify."

Thus, this gives all companies carte blanche to sue reporters for any revelation of any internal information that could have a financial impact on the company. Then, the press can sing and dance for Judge Kleinberg who will then decide if he thinks the information is for the "public interest" or just for an "interested public." Luckily for the public good, Judge Kleinberg generously adds that "nothing in this order is meant to preclude the exchange of opinions and ideas, speculation about the future, or analyses of known facts. The rumor and opinion mills may continue to run at full speed." Rumors and Speculation are still allowed. Accurate reporting is still potentially illegal, however.

Curiously, in his attack on the Merc's supposedly false annalogies, TomCS failed to mention this one: "Would a leak last month about Hewlett-Packard's imminent firing of Carly Fiorina be news or mere gossip? "

Judge Kleinberg's ruling is sufficiently broad that reporting information about the possible reorganization of publicly held companies could be a violation of a trade secret. This is a complete reversal of of journalistic president.

In fact, while Kleinberg alludes to whistle blowers in his ruling, he does not actually explicitly say that even they would be exempt.

Judge Kleinberg's appalling ruling is an invitation for companies to sue each and every news organization that reports on them with any unflattering information. Winning the litigation doesn't even have to be the point. By filing suit, they can issue broad subpoenas to news organizations to discover their sources and harass them. This could have a permanently chilling effect on fair and accurate reporting in the US.

The Kleinberg ruling will give companies virtual veto power on bad news. It is the lack of light and transparency that allowed the most egregious of the multibillion dollar corporate frauds to occur, including Worldcom, Enron and Health South.

We need a independent news now more than ever, the Kleinberg ruling has set us back and TomCS wants to keep us there.

3. TomCS on March 20, 2005 6:45 AM writes...

Thank you, Scote, for your considered response. I am neither American nor a lawyer, so I will accept your comment about Apple's legal team as a compliment: they seem to be doing well so far. But I have no relationship with them, or any other party to this action.

That said, I can agree fully with the central thought in your post. If there is a problem, it is more likely with the law as it stands than with the judge's ruling. So lobby your Californian assemblyman, and the Governor's staff, and get it changed. Play the ball and not the judge. I am reminded however of a New York bumper sticker "Paranoids have enemies too". Well, companies have rights, too, and California apparently wishes to protect their right to protect their sensitive internal documentation, where there is no broad public interest at stake.

The possible Carly Fiorina leak analogy does not I think help you, since the ruling is not about leaks, but about the passing on of specific, apparently misappropriated or stolen, documents. There is a separate set of issues about companies and the handling of share-price sensitive information, which is where I think the Fiorina analogy might have traction, but where the primary interest might be from SEC regulators. Some British journalists were if I remember correctly successfully prosecuted recently for insider trading in connection with their business gossip column.

The San Jose Mercury piece seems a little disingenuous in another respect. The MSM operate in a legal context, and they know that they run a variety of legal risks if they publish inadvisedly. They employ lawyers, editors and fact checkers. The judge's ruling changes nothing here. We don't know if the SJM (or the WSJ or the NYT) would have published Apple internal documents verbatim if they had come into their hands, since as far as we know they didn't have the opportunity. I suspect that, quietly, many would not wish to defend what has happened as journalism, but are concerned to limit its impact.

My main motivation in posting here was however a concern for a higher respect for facts in blogging. Donna herself uses the term "sloppy" about a journalist in another post (in fact "intentionally sloppy", which is pretty offensive to a professional). "Sloppy" when the facts are accessible at two clicks is inexcusable, and much of the reporting of this ruling has been just that.

I expect that it and the other Apple cases will run and run: let us hope for balanced and factually accurate reporting and commentary as they do.

TomCS

4. Donna on March 20, 2005 11:21 AM writes...

TomCS, this disagreement has nothing to do with "disrespect" for "facts." And it's not a case where one party hasn't done the reading, and upon reading will be converted. I've read the ruling and disagree with it. Judge Kleinberg could and should have come to a different conclusion given both the facts and arguments presented at the trial. Which is not to say that his opinion isn't rhetorically persuasive; quite the contrary. I would venture that it would be especially persuasive to non-lawyers who haven't read many opinions.

Perhaps the confusion arose because you expected me to respond to the editorial with a direct rebuttal of the ruling itself? But in fact my goal was simply to congratulate the Mercury News for its (in my opinion, correct) interpretation of the decision's implications for journalism. This has unfortunately been rare.

Consider the irony: As the media debates whether online journalists are "real journalists," often the accusation surfaces that the cub reporters of the Internet aren't reliable, don't check sources, and don't present accurate information the way that "real journalists" do. Yet in Apple v. Does, myriad mainstream media stories have misreported even the most basic facts in the case. Newsweek, for example, reported that "A judge ruled that THINKSECRET.COM must reveal its sources to Apple, which sued the site for leaking info on unannounced products." This was written when (1) the judge hadn't yet ruled; (2) the motion concerning protecting sources before the judge was about AppleInsider and PowerPage (not Think Secret); and (3)Apple had not directly sued either Apple Insider or PowerPage for leaking info on unannounced products (though it did sue Think Secret in a completely separate case). Meanwhile, no one from Newsweek contacted the sites or EFF to check the facts.

With regard to interpretation, it appears that many people like to take shortcuts; why come to your own conclusion when Judge Kleinberg has put so much work into his?

You disagree with my opinion about the implications of Judge Kleinberg's ruling, so you jump to the conclusion that I'm a "sloppy" journalist/blogger who didn't read it. You suggest that in comparison, Andrew Orlowski is a "professional." I suggest you read Andrew Orlowski.

5. TomCS on March 21, 2005 11:54 PM writes...

Donna

I owe you thanks, and a partial apology. My frustration was not so much with you as with the generally lamentable quality of reporting and commentary, as much in the MSM as in the blogs and tech threads, over this ruling. On this we clearly fully agree. I can add to Newsweek the initial AP report, a Dvorak piece on CBS Marketwatch and several others, and set against that some notable pieces of good sense in certain blogs - John Gruber at Daringfireball for example. I apologise in particular for implying that you personally that you had not read the ruling: I did not intend to, but doubt greatly if the SJMN editorialist had.

This is obviously potentially one of a number of Apple related suits which could have unpredictable/unintended consequences. We shall both I expect keep watching closely. But I think the judge has got one thing right: we are talking balances, not absolutes. There is also an old common law dictum,that hard cases make bad law, and that is perhaps my longer term worry here. Are the web publishers here really doing good journalism? If not, do they deserve the sort of reflex defense they are getting? And in particular is discovery the right battlefield to take the stand on?

Hope to read more of your thoughts now that I have you bookmarked, and perhaps to offer you more reactions. We do not I think disagree that widely.

And separately, I will look more carefully at Andrew Orlowski's reporting in future. But over several years I have come to rate The Register as about the best general IT on-line journal out there, with many fewer concerns about advertiser influence etc than most others. OK the sense of humour may be transatlantic, but...

TomCS

6. Donna Wentworth on March 22, 2005 12:28 PM writes...

Thank you, Tom -- I accept your apology and I look forward to hearing more from you as well.

As to The Register, I am a huge fan (and especially of the humor). Andrew Orlowski, alas, is an exception.