Apple to EFF: "We print subpoenas for breakfast"
Yesterday the EFF announced that they were asking the California Supreme Court for a protective order preventing Apple Computer from going after the individuals they've subpoenaed to hand over their sources regarding various product leaks:
Today the Electronic Frontier Foundation (EFF) asked a California Superior Court for a protective order that would prevent Apple Computer from forcing three online journalists to identify their confidential sources and hand over unpublished materials. EFF, serving as co-counsel for the journalists, argues that online journalists are protected by the same "reporter's privilege" laws that shield print journalists from having to reveal the names of anonymous sources.
I'd suggest you read the whole thing... but if you hadn't followed, various websites published information about a rumored product Apple was coming out with called "Asteroid", among other things, but it seems that "Asteroid" is what really set them off.
Apple is suing ThinkSecret directly for a whole bunch of nasty stuff involving trade secrets, but also subpoenaed several other websites, telling them to hand over their sources on the Asteroid story and other things, or else. They are trying to find '20 John Does' who allegedly leaked information.
The EFF stepped in to represent the websites being subpoenaed for their sources, arguing that going forward, online journalists are entitled to the same protections that print journalists have, and Apple is trying to set a dangerous precedent. This can be hard to really sell to people, as you have to think of the ramifications five, twenty, and even fifty+ years out. Remember, there was a time when 'television' was basically a bunch of amateurs, and even cable.
After a bunch of media coverage, independent counsel stepped in on ThinkSecret's behalf, and was filing motions to have the suit dismissed under constitutional grounds... which is ongoing. It's good to make the distinction: the EFF wasn't directly involved in handling the ThinkSecret case, as it involves Apple suing them for trade secret stuff. It might be abusive use of the legal system, but it wouldn't set precedent going forward, which is what the EFF is about.
All of this centers around the idea of "The Reporter's Privilege", which is the idea that journalists have the right to keep sources confidential. Just about every state that I'm aware of has something regarding it on the books, although from what I can tell the specifics can vary from state to state. In some cases, the various state courts have found it to be a byproduct of the 1st amendment, and in others it's been enacted as a type of shield-law.
If this interests you, there's a committee site with great information, and while I was researching this I found a great Slate article as well as a bunch of information given by the RTNDA. Googling this one is fascinating reading.
Let's assume for a moment that you don't consider website operators and/or bloggers to be journalists per se; that's your prerogative. Where this gets fundamental is whether you think they one day could be, and the precedents that are being protected for that day.
Personally, I think if you start to try to make distinctions about whether they're accredited, degreed, good at what they do, or even affiliated with larger organizations you're opening Pandora's box. To myself, until someone broadens my opinion, a journalist is someone who tries to inform the public at large through a medium.
And yes, I do believe that the public benefits via reporter privilege, and not having it would harm the public. If a reporter is doing a story on drug abuse in urban areas, and no one there will talk to them because the minute it's published the police will want to know who exactly had the crack that they talked to, the public won't be informed on what's going on around them. Society starts to close down, and things get scary.
Going back to the linked story, here is where things take a very strange turn:
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."
Basically, Apple is trying to end-run around the roadblocks the EFF has erected. Imagine if you had a bunch of documents in your apartment that a corporation wanted, and subpoenaed, which your lawyer decided to fight, which means one way or another it'll get worked out in the courts whether or not you have to turn them over.
However, instead of doing that, the corporation then goes and subpoenas your landlord, telling them to get the documents, since they have the keys, and hand them over. Or your wife. Or your mom. Or anyone who might have the keys to your apartment, but isn't directly involved. Which is why the EFF is having to go to the Supreme Court to get them to stop.
Not cool.
Posted by drunkenbatmanFebruary 15, 2005, at 11:13 PM
Comments (29)
Posted by: Twist at February 16, 2005 12:16 AM
It is a little bit late but will you be my Valentine EFF?
Posted by: fredb7 at February 16, 2005 01:13 AM
I wonder what we don't know. Why does Apple want these so bad? Why now?Yes, I'm sure there is something we don't. Apple is really pissed.
Posted by: fredb7 at February 16, 2005 01:14 AM
I wonder what we don't know. Why does Apple want these so bad? Why now?Yes, I'm sure there is something we don't know. Apple is really pissed.
Posted by: Charles Starrett at February 16, 2005 01:39 AM
Nice article - and I have also been wondering what it is that Apple is so concerned about. Also, if "Asteroid" is what made them so mad, who wants to take bets that the "anonymous informant" is actually someone who used to work for Logic? Would this enrage Apple even more, seeing as how the informant(s) probably aren't as big Mac enthusiasts as the normal Apple employee, say someone who had worked there for 10 years? Would be interesting to know.
Posted by: Jeff R at February 16, 2005 01:59 AM
This is definitely a touchy issue. Blogs run the gamit from Boing Boing to the BBC so how do you define a journalist in this space? One of the key issues is that in traditional media we count on the actual media organizations to weed out who's a reporter and who isn't by putting them on their payroll. Not necessarily fair or accurate, but it worked. They also provided a valuable function by categorizing and labeling the content (gossip versus world news). In the blog space, which is which and how do you tell?
I've just never seen anyone subpoena Dear Abbey for who "Cheating Wife" is. I wonder how that would have gone down. If anyone has a case history, I'd love to see it.
As far as Apple getting a hold of O'Grady's email, I think the courts are still trying to figure out how the 4th Amendment fits into the digital life. Most judges don't grok this stuff, and lawyers on either side can take advantage of that. Copyright, trademark, and trade secret law is much more mature and well understood than personal property in the digital realm. I imagine more poor decisions like this will crop up.
Also most ISP or hosted service providers put in their terms that they'll fork over your stuff if they get a subpoena.
thanks for the links in this article, it'll make good reading for tomorrow.
This post is so long, it may qualify as a DrunkenPost.
Posted by: Rory at February 16, 2005 05:47 AM
I think on-line publications should be afforded the same rights as off-line ones, in return they should have to meet the same standards though. As DB says a reporter is someone who tries to inform the public, what ever the medium.
Demanding the ISP hand over e-mail is pretty low and a total invasion of privacy. There must be a lot more to this Asteroid thing than just being a breakout box or I couldn't see why they would make so much fuss. Maybe a media centre add-on for the Mac mini?
Posted by: Chucky at February 16, 2005 08:34 AM
I wonder what we don't know. Why does Apple want these so bad? Why now?
I strongly suspect it's not about Asteroid per se.
Apple is just trying to make the point to its employees and suppliers that if you leak, you will be caught.
Since I believe in freedom of the press, I really hope they lose.
Posted by: Jason Deraleau at February 16, 2005 09:25 AM
There was a good article about this on the Washington Post that made mention of something I think will make or break this case:
"But while lawsuits against online publications are rare, he (Andrew Beckerman-Rodau - ed.) 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."
- http://www.washingtonpost.com/wp-dyn/articles/A7937-2005Jan13.html
I would bet that Apple makes every one of their employees sign an NDA as part of their hiring process. So while one can argue all day about the role of bloggers in journalism or engage in other ideological discussions, if Apple can prove TS broke this law, the case is open and shut. What will be interesting at that point is if the EFF does decide to set a precedent by appealing and trying to get the UTSA declared unconstituttional (tramples on first ammendment?).
Posted by: Jason Terhorst at February 16, 2005 10:27 AM
Considering that they never actually released said product, is it possible that it was just a trap that Apple set to find leaks in its organization? They've been pissed in the past, and this may be a way to prevent future problems.
Posted by: Joe Ragosta at February 16, 2005 11:48 AM
The one thing you're all forgetting is that there are laws to protect trade secrets. EFF's position would effectively negate ALL trade secret protection. Anyone caught stealing trade secret information would merely need to post it on a web site and call themselves a reporter. By claiming first amendment rights, they could avoid any prosecution - which is clearly NOT in the interest of the public, at least with respect to rewarding innovative companies.
Posted by: Joseph Di at February 16, 2005 11:58 AM
The one thing you're all forgetting is that there are laws to protect trade secrets. EFF's position would effectively negate ALL trade secret protection. Anyone caught stealing trade secret information would merely need to post it on a web site and call themselves a reporter.
No it doesn't! The trade secret laws are intended to stop the trafficking of trade secrets in corporate espionage. That means one company can't go to an employee of another and pay them to give them confidential information. It also means another company can't pay 'a broker' to do the dirty work for them. Trade secrets are different from patents though in that if they get out, they are now public knowledge and its why we have the patent system in the first place!
Companies don't like this situation though and hate it when leaks occur and try to do everything they can to stop them when it happens. That is the danger of trade secrets. When they are out they are out... if a company is angry enough, they may try to abuse the system to get what they want, but it is still abusive use of trade secret laws (this happens against individuals all the time, most recently in some of the tobacco and pollution cases).
It's disappointing that Apple has chosen to take this direction, but I have faith the courts will work it out....
Posted by: Maxim at February 16, 2005 11:59 AM
It's nice to see someone trying to bring sense to this issue, but I can't believe I am getting most of my news on this subject from a site named "drunken blog". I like what you write DB, don't take it personally, I just wish this story was talked about in more news organizations so I could better inform my opinion.
Posted by: Stu at February 16, 2005 12:00 PM
And to follow on to Joe Ragosta's comment, there is NO federal "reporter's privilege" laws. Only some states have these.
See the national stories about the newsreporters who leaked CIA information. There really isn't any difference - they're both trade secrets. Those reporters are going to jail because they didn't release their sources. Same should be applied in the Apple case.
Posted by: James at February 16, 2005 12:10 PM
I am willing to agree that bloggers can be journalists and can be afforded the protections that journalists have traditionally enjoyed.
One thing that concerns me here is that, to use the analogy of the community drug use, there is a definite public interest or public safety part of that drug use report. Where is the public interest in reporting on a new product? (And I don't mean "interesting to the public", I mean "the public needs to be informed about this to make informed decisions about important issues"). To me, these protections are designed to allow public disclosure of important things like companies public polluting (Love Canal, NJ), companies bribing public officials, public officals screwing over constiuents, etc. None of that exists in this situation.
That is just my way of thinking, and I could be convinced otherwise (that this is of important public interest) by a good example.
Thanks,
James
Posted by: Brant Sears at February 16, 2005 12:18 PM
There is a law called the Uniform Trade Secrets Act which makes it a crime to get someone to violate an NDA. This is basically the law that Think Secret has violated. I would said "alleged to have violated", but I think the facts in this case are so clear that I can just say they violated the law. The question is whether the law is constitutional.
I think it is pretty clear that bloggers are journalists. I would be surprised if the court didn't rule that they are, or made no statement on the ruling. The case is whether journalists can violate UTSA because of the first amendement.
If UTSA is unconstitutional, it means that NDAs are essentially unenforceable so long as you blab the information to the general public. (As opposed to blabbing the information in secret to say, a competitor.)
It might also mean that information obtained in other ways (i.e. spying) can be freely released to the public.
It may mean that NDAs are unconstitutional too since they inhibit free speech.
My guess is that UTSA will be found to be constitutional and that Think Secret will be found to have violated this law. Furthermore, I think that Apple will get the courts to reveal who is leaking the information and that Apple will fire them and possibly sue them for damages to make an example out of them.
I think the main danger of such a ruling is that companies may be able to use this type of law to punish "whistle blowers" who are trying to expose wrong doing by giving secret information to reporters.
The alternative ruling is that UTSA is unconstitutional. I think that ruling would mean that NDAs are basically useless and unenforceable. Under this scenario, Apple and other companies that want to keep secrets will have to be far more careful about how information is shared internally in the company. Perhaps they might move product design work to another country where an NDA can be enforced.
Posted by: JCK at February 16, 2005 12:28 PM
James said...
One thing that concerns me here is that, to use the analogy of the community drug use, there is a definite public interest or public safety part of that drug use report.
My worry in this is you have problems protecting one without the other. I've been reading a book on the history of fascism this month so I may be biased in erring on the side of caution. :D
This is really a surreal story. Who would have thought Apple would be the one to start this argument? I would have fingered Microsoft or IBM or a company out to make a buck somewhere.
Posted by: James at February 16, 2005 12:49 PM
JCK,
I can see your point, and it definitely is difficult to define public interest. Certain segments of society would argue that all companies are inherently evil and thus cannot be allowed to do anything outside of public scrutiny. Other segments would say Don't worry, the government is looking out for you, just let us do our business, we'll tell you what you need to know (both comments are slightly tongue-in-cheek)
Do you think there was a public interest in publishing alleged details of a new product that has not been announced or anything? I can see the argument about public interest on an upgraded product to allow people to make an informed decision on whether to buy the current offering or wait a few weeks (although I also think that is a pretty weak argument).
James
Posted by: wasabifan at February 16, 2005 01:06 PM
As a former Apple employee and current Mac user, I feel the leakers should lose their jobs. However, I do not feel that ThinkSecret or any other online site should have to reveal their sources. It is Apple's job to find the leak.
The only way I feel that the UTSA should be involved is if Apple can PROVE that ThinkSecret persuaded them through financial gifts or some other form of persuasion (paying for stories is frowned upon in reputable journalistic circles anyway).
Apple has the name of everybody on that project, and that is where they need to start (not with ThinkSecret). Oh how I wish I had an "Internet Leak Pummeling Squad" t-shirt. Apple needs to take care of Apple, not go after the press.
Posted by: Jonathan Marsh at February 16, 2005 01:15 PM
I find it amusing that this is the most 'innovative' way Apple is able to stop their leaks.
Posted by: Chucky at February 16, 2005 01:21 PM
wasabifan hits the nail on the head.
Posted by: Bennyboy at February 16, 2005 01:49 PM
It's like the Jerky Boys said in one of their phone calls, "Sue Everybody!" Poor Apple has all that cash burning a hole in their pocket and needs to spend it. Remember Karma though, they still haven't settled their lawsuit against Apple records.
Posted by: shi at February 16, 2005 02:05 PM
This seems like an excuse for the apple haters to come out in force... Like Apple says, they have a history of being a generous company and wouldn't be doing this if it weren't necessary and deserved.
Posted by: william at February 16, 2005 02:11 PM
The problem here is simple... Apple wants to go after the internal leakers and throw the book at them under the Trade Secrets Act. California is a bad place to fool around with Trade Secrets and those who leaked are looking at bad things coming their way.
But to do that, Apple has to know who they are! And they can't figure it out themselves. For whatever reason Apple has a lot of leakers and can't figure out who they are, so they want the information the others have. They are in a Catch-22. They aren't the only ones to be in that situation, they have just made the decision that it is more important than the bad PR. i don't think they expected it to become as large as it has...
...I think Apple is trying to move beyond their 'traditional' community and doesn't care that these sites, any sites, exist. They don't want mac-specific sites anymore, they want to be in PC World.
Posted by: FUI at February 16, 2005 02:18 PM
It's legal intimidation. Apple doesn't expect their case against think secret to go to court, they expect him to piss himself and had over what he knows and then drop the matter.
Fucking bullies!
Posted by: Mandy at February 16, 2005 02:21 PM
Jason says, "What will be interesting at that point is if the EFF does decide to set a precedent by appealing and trying to get the UTSA declared unconstituttional (tramples on first ammendment?)."
I think they will be challenging the one part of California's law, not the UTSA directly?
Posted by: Jim Farentino at February 16, 2005 02:59 PM
This is all whiney bullshit. The people at thinksecret had stolen information. The information is akin to products or services. The people that run the site are just peddlers of stolen stuff. It wouldn't be any different if they were selling stolen iPods.
They make money (advertising dollars) by publishing information they know to be stolen. Now imagine if I were to be given stolen information such credit card numbers/account numbers from Chase Manhattan bank do I have the right to publish that information in a blog and hide behind 'journalists sources' bullshit? No.
Companies have a right to keep their trade secrets secret. Issues where a companies secrets are potentially dangerous to the publics health are protect under different laws.
Posted by: wasabifan at February 16, 2005 03:48 PM
Companies have a right to their intelectual property. However, it is their responsibility to maintain it. It is not ThinkSecret's responsibility to do Apple's job for them.
As a programmer, I appreciate my company's need to maintain a certain level of confidentiality through NDAs. Apple is the same way. I have maintained my NDA at Apple, and I intend to maintain it at my current company.
With the exception of a third party journalist actively seeking information (through money and/or bribes), the company should in my opinion have no case against said journalist.
If the company can determine the leak, they do have the legal right to go after (and should go after in my opinion) the source of the leak. If they do not know who leaked the information, it is that company's responsibility to find the leak and/or change their practices to prevent future leaks or to better track down future leaks.
Posted by: Jerry at February 16, 2005 07:23 PM
I think Jim Farentino states it best. All this noise about journalistic freedom is a ruse. Think Secret was trafficing in illegaly obtained goods and information and are trying to make a federal case out of it.
What I don't care for however (and thank you, Drunken Blog, for providing this info) is the EFF involvement with Apple going to Nfox.com. Apple is clearly abusing the system there, in my mind. I do hope that the EFF stears clear of the initial issue though, as I tend to respect what they're fighting for in general.
I wonder what we don't know. Why does Apple want these so bad? Why now?