Posting trade secrets on the net as a private individual does not make you a reporter, a journalist, or a soldier in the frontlines of free speech.
AI? Not a news site. TS? Not a news site. PowerPage? You get the idea.
O'Grady and I are together in only one thing - we both wish this would just go away. Unlike him though, I really could not care less how it turns out. It's not a test of shield laws, those are for journalists. It's not a test of free speech, trade secrets were posted.
It's just an individual who screwed up trying to garner support for a lost cause, IMO... and looking kind of lame in the process.
Posting trade secrets on the net as a private individual does not make you a reporter, a journalist, or a soldier in the frontlines of free speech.
AI? Not a news site. TS? Not a news site. PowerPage? You get the idea.
O'Grady and I are together in only one thing - we both wish this would just go away. Unlike him though, I really could not care less how it turns out. It's not a test of shield laws, those are for journalists. It's not a test of free speech, trade secrets were posted.
It's just an individual who screwed up trying to garner support for a lost cause, IMO... and looking kind of lame in the process.
What are the qualifications for a site to be considered a "news site"?
How does one know if a certain peice of info is a "trade secret?"
"EFF petitioned to correct the trial court's manifest error and restore the previously well-settled constitutional protections for a journalist's confidential information, upon which the practice of journalism and the freedom of press depend."
This is my favorite part of the BS. The question of confidentiality for journalists' sources is FAR from being settled. There is no federal shield law and somewhere between 13 and 20 states don't have shield laws of any kind.
This is my favorite part of the BS. The question of confidentiality for journalists' sources is FAR from being settled. There is no federal shield law and somewhere between 13 and 20 states don't have shield laws of any kind.
RTFA!
1) Is it right for Apple to surreptitiously bully his ISP, a small company that Apple absolutely dwarfs, instead of the blogger himself, and without even notifying him?
2) Did Apple do absolutely everything it could at its end to find the source of the leak? At what point does the recipient of a leak become guilty, and the source of the leak become innocent?
3) The blogger did assert that he didn't know the information was confidential, and that he took down the information as soon as Apple. Granted, we should take his assertions with a grain of salt, but I'm inclined to give him the benefit of the doubt.
4) Apple's actions set a dangerous precedent that threaten freedom of the press. Taking to its logical extreme, Apple's position implies that journalists cannot protect their sources, ever. This means that no source would ever come forward, and our only news feeds would be government and corporate press releases. For instance, nobody would have revealed that Bush had authorized illegal wiretaps.
At what point does the recipient of a leak become guilty, and the source of the leak become innocent?
There's no point where a recipeint of a leak becomes guilty. The sites (and their operators) who were subpoenaed did not commit any crimes. If the court does not agree with Jason O'Grady (PowerPage) or the higher powers here at AI, they are finding that neither the PowerPage or AppleInsider count as media outlets and that their writers are not journalists. They will then have to turn over any information they have about who leaked information to them (if anyone).
Apple wants to show their employees that leaks will not be tolerated. I worked for a startup company when I got out of high school and even after the product went public we weren't supposed to talk about it. The company had old WWII posters on the wall with phrases like, "Loose lips sink ships", etc.
In the past, Apple has fired people for leaking information. Heck, I think even that poor webdesigner who accidently uploaded a G5 specs picture before they were announced ended up losing his job for stealing Steve Jobs' thunder.
Any employee of Apple that has leaked information to a rumor site has violated their Non Disclouse Agreement (NDA). Imagine that you are running a large company which has major competition. Your company is in a race to release a new product and it has an edge that you believe no other company can duplicate (at least until your product is on the market). Things are going along quite well when all of a sudden, you're reading about your product on the internet 3 months before it is due to launch. Someone leaked information about your top secret project to the press and now your competition knows exactly what you are up to and what they need to make their product better than yours. If they have the resources, they might even get their product out to the market first.
In that situation, wouldn't you not only want, but need to make sure that leaks did not take place? So you send out your legal department to figure out who leaked the information. But the leak did not take place inside your company's walls and there's no way to prove which one of your people went to the press. The next logical step? Try and get the information from these websites. The site is sent a cease and desist letter, but that ship has sailed and the information is already out there. It's not surprising that the legal department would try and get the site taken down until the information was removed.
So the question these judges are trying to answer is, "Do rumor or news publications have an obligation to give up the names of sources who violate trade secrets?" So far, the answer has been, "Yes, they must tell Apple who leaked the information in order to take legal action against those people." Whether or not this holds up remains to be seen.
OK. You're framing the debate in the wrong way. Here are the two pillars of your argument:
1) The sanctity of corporate trade secrets is close to being absolute.
2) Websites, due to semantics and a legal technicality, "are not journalists".
These two pillars are weak, and can be easily taken down.
To address 1), let's say that society has only a choice between two extremes:
A) Complete, absolute freedom of the press. Noone who publishes anything, whether a blog or a newspaper can be subpeonaed. Corporate secrets and trade secrets would be leaked for all to see. Company profits would suffer significantly.
Zero freedom of the press. All sources would have to be revealed by all publications upon subpoena, irrespective of whether they're blogs or major newspapers. No source would come forward to tell their story to a journalists. Whisleblowing would cease to exist. Deep Throat would have never taken down the Nixon Administration. Noone would have found out that Bush had authorized illegal wiretaps. Ken Lay and Jeff Skilling would not be on trial for their crimes at Enron, and would instead be sitting on a beach in Hawaii. Bernie Ebbers (sp?) of WorldCom would be a free man, instead of serving a life sentence.
Which extreme is preferable? If you say , then you are advocating totalitarianism, and condemning liberal democracy to an absolute total death as a system of government and society. The sanctity of corporate trade secrets must absolutely take on less importance than freedom of the press. The only question is: to what extent?
I know what you're actually advocating is between A) and , but if you accept Apple's argument, then you're advocating a slippery slope towards .
As for your point 2), this can also be interpreted as a slippery slope. What is the distinction between a real "journalist" and an "online publication"? Is CNN TV free to protect its sources, but not cnn.com? There are many bloggers who do a far better job of reporting and analyzing the news than actual journalists. Many mainstream press "journalists" are idiots who do nothing more than rehash press releases (example: look at many of the early CNet.com stories about SCO vs. IBM/Linux).
Furthermore, much of the mainstream media has failed to take the Bush administration to task over such controversies as the false premises for the war on Iraq. On the other hand, it took bloggers to force Trent Lott to resign from Congress, the mainstream media having treated him with kid gloves. Who's TRULY defending freedom of the press and oversight of elected officials? A free press acts as a check on corporate and government power and deceit. Why should one form of media (indoctrinated, corporate-controlled) deserve more protection than the other (informal, closer to the people, less organized)?
Your representation and argument about what constitutes a true "journalist" is disingenuous and murky and best, and absolutely misleading, biased and deceitful at worst.
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Originally posted by Fran441
There's no point where a recipeint of a leak becomes guilty. The sites (and their operators) who were subpoenaed did not commit any crimes. If the court does not agree with Jason O'Grady (PowerPage) or the higher powers here at AI, they are finding that neither the PowerPage or AppleInsider count as media outlets and that their writers are not journalists. They will then have to turn over any information they have about who leaked information to them (if anyone).
Apple wants to show their employees that leaks will not be tolerated. I worked for a startup company when I got out of high school and even after the product went public we weren't supposed to talk about it. The company had old WWII posters on the wall with phrases like, "Loose lips sink ships", etc.
In the past, Apple has fired people for leaking information. Heck, I think even that poor webdesigner who accidently uploaded a G5 specs picture before they were announced ended up losing his job for stealing Steve Jobs' thunder.
Any employee of Apple that has leaked information to a rumor site has violated their Non Disclouse Agreement (NDA). Imagine that you are running a large company which has major competition. Your company is in a race to release a new product and it has an edge that you believe no other company can duplicate (at least until your product is on the market). Things are going along quite well when all of a sudden, you're reading about your product on the internet 3 months before it is due to launch. Someone leaked information about your top secret project to the press and now your competition knows exactly what you are up to and what they need to make their product better than yours. If they have the resources, they might even get their product out to the market first.
In that situation, wouldn't you not only want, but need to make sure that leaks did not take place? So you send out your legal department to figure out who leaked the information. But the leak did not take place inside your company's walls and there's no way to prove which one of your people went to the press. The next logical step? Try and get the information from these websites. The site is sent a cease and desist letter, but that ship has sailed and the information is already out there. It's not surprising that the legal department would try and get the site taken down until the information was removed.
So the question these judges are trying to answer is, "Do rumor or news publications have an obligation to give up the names of sources who violate trade secrets?" So far, the answer has been, "Yes, they must tell Apple who leaked the information in order to take legal action against those people." Whether or not this holds up remains to be seen.
This is so effin ridiculous. There are exactly zero freedom of speech issues here.
1) Apple asked for a name of someone who broke a law, the source, and that someone did not break the law to uncover something relevant to the health and safety of society. So it's not a whistleblower and that makes the leak illegal in a civil sense.
2) Someone, Jason, declined.
3) A JUDGE said essentially -- cough up the name, but I'll wait for the full EFF case appeal ruling before I hold you in contempt for not giving me the name.
There is no freedom to break civil or criminal law in freedom of speech. That is long standing and one of the tenets of civil disobedence, e.g. I can say/do something unlawful but am willing to go to jail/be fined afterwards.
Freedom of sppeech is -- Apple can not prevent Jason from posting the article -- that would be prior restraint and against free speech. But the second Jason posted it he opened himself to the civil legal system. Seeing as all Apple wants is the source who provided info illegally, and not a pound of O'Grady's flesh, I'd say he has his panties in a bundle over not much at all. Overall, what he thought about how the system is supposed to work was flawed.
And JC, your arguments are flawed because Deep Throat would be classified as a whistleblower acting in the public's best interests. That makes all the difference.
And JC, your arguments are flawed because Deep Throat would be classified as a whistleblower acting in the public's best interests. That makes all the difference.
You're either a reactionary Apple fanboy, or your attention span is very limited. Either way, it's obvious you didn't read most of my careful written post and my carefully considered arguments, choosing to state, quite obtusely, that my "arguments are flawed" on the basis of some vague reference to whistleblower legislation.
The issue I bring up is not a question of the letter of the law. It is about the spirit of one of the most important institutions in any liberal democracy, be it the U.S., Canada, the U.K., etc. That issue pertains to the freedom of the press to protect its sources. Without the ability to protect its sources, no source wishing to remain anonymous would ever come forward again, because a judge could force the media outlet to reveal his or her identity. Without the ability to protect its sources, the press becomes nothing more than an outlet for corporate and government press releases. The people would be blind to what is really happening, and one of the most important checks on government and corporate power would dissapear.
It is not a question of legalities. Apple has the right to proprietary information. Apple has the right to pursue the source of the leak to the fullest extent of the law. Where that right stops, according to the spirt of the constitution of any liberal democracy, is in forcing any press source to disclose their source. Once they have that right, a dangerous precedent is set whereby a judge can order any press outlet to reveal their source for any story.
To give you a concrete example: Diebold. A Diebold employee chose to disclose the fact that their voting machines are deeply flawed, and include "back doors" enabling hackers to manipulate voting results. Diebold is pursuing him in criminal court for three felony charges for revealing "trade secrets":
Seeing as Diebold is acting contrary to the public interest by potentially subverting the democratic process, I have a hard time working up sympathy for Apple being "harmed" by a leaked announcement of a new MacBook a week ahead of its scheduled release.
The issue I bring up is not a question of the letter of the law. It is about the spirit of one of the most important institutions in any liberal democracy, be it the U.S., Canada, the U.K., etc. That issue pertains to the freedom of the press to protect its sources. Without the ability to protect its sources, no source wishing to remain anonymous would ever come forward again, because a judge could force the media outlet to reveal his or her identity. Without the ability to protect its sources, the press becomes nothing more than an outlet for corporate and government press releases. The people would be blind to what is really happening, and one of the most important checks on government and corporate power would dissapear.
BZZZT.
You forgot the most important part of that source protection... "for the public good".
If it doesn't meet that qualification, it's not a protected source, according to law and precedent. Sorry.
I've seen so MANY people spew this same bit of FUD about it isn't funny... NOT ALL SOURCES ARE PROTECTED. Get that through your head. A source is only protected in the case of trade secrets, etc, if the information leaked is in the public's best interest.
Diebold case? Public interest. Duh, voting.
Apple vs. O'Grady? NOT PUBLIC INTEREST. Case closed.
okay, JC, i R'dTFA, and i will tell you this -- jason o'grady's main point -- his MAIN POINT -- is that this is not something WORTH getting subpoenaed over, with his "Yawn." comment or his Apple "can claim that their cafeteria menu is a "trade secret" then sue your ass off if you post it on your blog." you see? that's his main defense. that apple is getting too worked up over this, and then layering i under a "protection of free speech" mantra. so when does it become something subpoena worthy? when o'grady leaks significant info that apple will be bought out by microsoft and their stock price plummets (or soars, who knows?), affecting BILLIONS of stock-holder investment dollars? where is that line drawn, and why does jason o'grady get to say where it gets drawn? the fact is, he doesn't. and if apple does NOT protect trade secrets, no matter how small, they will have an even harder time protecting them down the road as a precedent will have been set that they "don't mind so much." steve and apple have managed to change the course of the "major announcement at trade shows and ONLY trade shows" business cycle, and the ridiculously leaky apple from the ameilo days, and they haven't done it by playing nice. sometimes they haven't even been SANE about it (remember when ATi's contract got all but killed when they leaked the cube specs BY ACCIDENT ont he trade show floor the night BEFORE it was to be debuted? at least steve seems a BIT calmer these days, but ATi is still licking their wounds on that one, and have finally become the main video supplier again. apple have to kill rumors when they start, and sometimes release stuff at oddball times to keep people watching.
You forgot the most important part of that source protection... "for the public good".
If it doesn't meet that qualification, it's not a protected source, according to law and precedent. Sorry.
I've seen so MANY people spew this same bit of FUD about it isn't funny... NOT ALL SOURCES ARE PROTECTED. Get that through your head. A source is only protected in the case of trade secrets, etc, if the information leaked is in the public's best interest.
Diebold case? Public interest. Duh, voting.
Apple vs. O'Grady? NOT PUBLIC INTEREST. Case closed.
You have far too much confidence in the infallability of the judiciary, especially in regard to determining what is in "the public interest" versus what is not. The distinction is not as clear as you make it appear to be.
It was a judge who largely let Microsoft off the hook during the anti-trust trial. It was a group of judges (Supreme Court) that suspended the vote recounts in Florida.
Given the fact that the Diebold trial is about "trade secrets" and "proprietary information", which is on the surface the same argument that Apple is using, it's not inconceivable that an unlucky pick of a judge ("Uh, oh! We drew Judge Jackson!") would be unable to distinguish between Apple's legimate interests, and Diebold's 100% bogus claim to any sort of damages or retaliation from a whistleblower who tried to do the right thing.
See what I mean by "slippery slope" and "dangerous precedent"?
okay, JC, i R'dTFA, and i will tell you this -- jason o'grady's main point -- his MAIN POINT -- is that this is not something WORTH getting subpoenaed over, with his "Yawn." comment or his Apple "can claim that their cafeteria menu is a "trade secret" then sue your ass off if you post it on your blog." you see? that's his main defense. that apple is getting too worked up over this, and then layering i under a "protection of free speech" mantra. so when does it become something subpoena worthy? when o'grady leaks significant info that apple will be bought out by microsoft and their stock price plummets (or soars, who knows?), affecting BILLIONS of stock-holder investment dollars? where is that line drawn, and why does jason o'grady get to say where it gets drawn? the fact is, he doesn't. and if apple does NOT protect trade secrets, no matter how small, they will have an even harder time protecting them down the road as a precedent will have been set that they "don't mind so much." steve and apple have managed to change the course of the "major announcement at trade shows and ONLY trade shows" business cycle, and the ridiculously leaky apple from the ameilo days, and they haven't done it by playing nice. sometimes they haven't even been SANE about it (remember when ATi's contract got all but killed when they leaked the cube specs BY ACCIDENT ont he trade show floor the night BEFORE it was to be debuted? at least steve seems a BIT calmer these days, but ATi is still licking their wounds on that one, and have finally become the main video supplier again. apple have to kill rumors when they start, and sometimes release stuff at oddball times to keep people watching.
but o'grady does not have much of a case here.
You seem to have great difficulty understanding the position I'm presenting in my arguments. This is not about free speech. This about the right of journalists to protect legitimate sources and the very survival of the free press.
What's more important? Corporate profits, or the sanctitity and impartiality of the voting process?
Given the rhetoric over "corporate trade secrets", it's not inconceivable that we might have to choose between the two, especially in regard to the Diebold "trade secrets" case.
You have far too much confidence in the infallability of the judiciary, especially in regard to determining what is in "the public interest" versus what is not. The distinction is not as clear as you make it appear to be.
It was a judge who largely let Microsoft off the hook during the anti-trust trial. It was a group of judges (Supreme Court) that suspended the vote recounts in Florida.
Neither of which have jack-all to do with this subject, this trial, or this thread, but points for trying to pull in irrelevant emotional issues to muddy the conversation.
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Given the fact that the Diebold trial is about "trade secrets" and "proprietary information", which is on the surface the same argument that Apple is using, it's not inconceivable that an unlucky pick of a judge ("Uh, oh! We drew Judge Jackson!") would be unable to distinguish between Apple's legimate interests, and Diebold's 100% bogus claim to any sort of damages or retaliation from a whistleblower who tried to do the right thing.
See what I mean by "slippery slope" and "dangerous precedent"?
So let me get this straight... because *some* judge, *might* *conceivably* rule that what is pretty damned obviously 'public interest' (voting) isn't, you want to make sure that *ALL* sources are private, no matter how idiotic the reason.
Okay.
Tell you what, I'll start a blog, and start printing trash about you. Made up? Real? Who cares? I can claim 'sources say' and when you want to sue for libel, tough noogies. Sources are protected. Fair?
Of course not.
Slippery slopes... dangerous precedent... works both ways, bub.
Whoever leaked broke their contractual obligations with Apple. Apple has a right to pursue those leaks. The ISP presumably had information that could trace those leaks. That's a legitimate subpoena. They can fight it, and they might win, but the grounds are valid. O'Grady published those leaks. Whether they were massively ground breaking or not, is irrelevant. What *IS* relevant is if the leak was in the public good. It's pretty obvious it wasn't. Therefore the sources aren't protected. End of story.
You have far too much confidence in the intelligence, professionalism, and infallibility of anyone who wants to proclaim themselves a 'journalist'.
And really, it's not about corporate profits, is it? It's about corporations being able to exist, do research, bring products to market, and produce, in the end, *better* products. Without the profit incentive, they simply won't. Trade secrets are an important part of that picture, and creating a blanket shield law for all sources, regardless of the information being leaked, would only destroy that incentive. You want to create either/or scenarios, you need to be honest and run *both* possibilities to their conclusions, not just one, and then dangling out one doomsday and one vague outcome as a 'choice'. That's not honest, it's not clear thinking, and it's not any choice at all.
Look, I want the whistleblowers, etc, to come forward as much as you do, when it is something *in the public interest*. That's a highly important and precious element of a free society, but... this simply wasn't in that class. The entire public interest test exists *PRECISELY* to distinguish between sources that should be protected, and those that shouldn't. It *prevents* us having to choose an either/or situation that you seem intent on ramming down our throats as a strawman. The either/or doesn't exist, because the public interest test exists. That's the way it works.
By removing the public interest test, which you seem intent on doing, THAT is what forces it into an either/or situation... in which case your slippery slope argument starts to have merit. Unfortunately for you, but fortunately for us, your either/or is a fear tactic based on sand.
Neither of which have jack-all to do with this subject, this trial, or this thread, but points for trying to pull in irrelevant emotional issues to muddy the conversation.
The statement that any judgement of whether or not to subpoena a journalist will be based absolutely 100% of the time on "the public interest" implies an infallible judiciary. This is a fallacy and these two examples dispel the implication of an infallible judiciary, so this is not a non sequitur by any stretch of the imagination.
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So let me get this straight... because *some* judge, *might* *conceivably* rule that what is pretty damned obviously 'public interest' (voting) isn't, you want to make sure that *ALL* sources are private, no matter how idiotic the reason.
Ever hear of corrupt or biased judges? I have. I'm surprised you haven't.
Also, the two examples I provided above indicate that this has already happened, and is far beyond a purely hypothetical possibility.
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Okay.
Tell you what, I'll start a blog, and start printing trash about you. Made up? Real? Who cares? I can claim 'sources say' and when you want to sue for libel, tough noogies. Sources are protected. Fair?
Of course not.
I don't care if you libel me in your blog because I know nobody will pay attention to it, and probably only one person will ever read it. You might as well be shouting in the vacuum of space.
Besides, this IS a non sequitur, since Apple has only gone after bloggers who have disclosed TRUE information about trade secrets
of upcoming product releases. They don't go after people who lie or who make stuff up. You're way off base with that comment.
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Slippery slopes... dangerous precedent... works both ways, bub.
Whoever leaked broke their contractual obligations with Apple. Apple has a right to pursue those leaks. The ISP presumably had information that could trace those leaks. That's a legitimate subpoena. They can fight it, and they might win, but the grounds are valid. O'Grady published those leaks. Whether they were massively ground breaking or not, is irrelevant. What *IS* relevant is if the leak was in the public good. It's pretty obvious it wasn't. Therefore the sources aren't protected. End of story.
Funny, those are probably exactly the same arguments that the lawyers for Diebold are probably using to prosecute the source of their leak. They could conceivably claim that the disclosure of the vulnerabilities to their voting machines would work against the "public good", because it means that more votes counting would be circumvented than before.
So my slippery slope argument stands. Now that the judge in the Gonzales vs. Google case upheld the DoJ's right to subpoena search engines for search results, anybody could subpoena anybody for anything. A fishing expedition is NOT grounds for a subpoena, since there was no criminal investigation involved. Again, this blows the "all judges are infallible" argument out of the water.
BTW, did I say that the source of the leak is innocent? NO! I said the recipient of the leak is. The source of the leak broke the law. Apple should find the source of the leak by conducting an internal investigation. It's possible the recipient initiated the leak, but this is extremely difficult to prove.
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You have far too much confidence in the intelligence, professionalism, and infallibility of anyone who wants to proclaim themselves a 'journalist'.
Where the hell did I say or imply this?!? Talk about a straw man argument! You're putting words in my mouth and are making stuff up as you go along. HERE is what I said, verbatim:
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What is the distinction between a real "journalist" and an "online publication"? Is CNN TV free to protect its sources, but not cnn.com? There are many bloggers who do a far better job of reporting and analyzing the news than actual journalists. Many mainstream press "journalists" are idiots who do nothing more than rehash press releases (example: look at many of the early CNet.com stories about SCO vs. IBM/Linux).
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I said some mainstream journalists suck and some blogger journalists are excellent. My implication was that the opposite is also true.
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And really, it's not about corporate profits, is it? It's about corporations being able to exist, do research, bring products to market, and produce, in the end, *better* products. Without the profit incentive, they simply won't. Trade secrets are an important part of that picture, and creating a blanket shield law for all sources, regardless of the information being leaked, would only destroy that incentive. You want to create either/or scenarios, you need to be honest and run *both* possibilities to their conclusions, not just one, and then dangling out one doomsday and one vague outcome as a 'choice'. That's not honest, it's not clear thinking, and it's not any choice at all.
Look, I want the whistleblowers, etc, to come forward as much as you do, when it is something *in the public interest*. That's a highly important and precious element of a free society, but... this simply wasn't in that class. The entire public interest test exists *PRECISELY* to distinguish between sources that should be protected, and those that shouldn't. It *prevents* us having to choose an either/or situation that you seem intent on ramming down our throats as a strawman. The either/or doesn't exist, because the public interest test exists. That's the way it works.
By removing the public interest test, which you seem intent on doing, THAT is what forces it into an either/or situation... in which case your slippery slope argument starts to have merit. Unfortunately for you, but fortunately for us, your either/or is a fear tactic based on sand.
Did I say corporations should no longer exist? No. Another straw man on your part. I said that corporate profits should not supersede the public interest, like, I don't know, the right to vote and have that vote counted accurately?
I'm not removing the public interest test. Judges of dubious, uh, judgement, are doing it themselves. Look at the Microsoft, the Florida recount case, and the Google search results subpoena cases. These all prove that judges do not properly conduct the "public interest" "test" 100% of the time. If they can't assess whether or not a subpoena is in the public interest, then they effectively cannot be counted on as a check on government or corporate power.
So I ask you again, which is preferable? Corporate profits or a free press?
It is indeed an either-or question, and there indeed is a slippery slope. You're "evidence" is suspect at best and totally inadmissible at worst.
Comments
Posting trade secrets on the net as a private individual does not make you a reporter, a journalist, or a soldier in the frontlines of free speech.
AI? Not a news site. TS? Not a news site. PowerPage? You get the idea.
O'Grady and I are together in only one thing - we both wish this would just go away. Unlike him though, I really could not care less how it turns out. It's not a test of shield laws, those are for journalists. It's not a test of free speech, trade secrets were posted.
It's just an individual who screwed up trying to garner support for a lost cause, IMO... and looking kind of lame in the process.
Originally posted by Kickaha
OMG, I am so tired of hearing about this.
Posting trade secrets on the net as a private individual does not make you a reporter, a journalist, or a soldier in the frontlines of free speech.
AI? Not a news site. TS? Not a news site. PowerPage? You get the idea.
O'Grady and I are together in only one thing - we both wish this would just go away. Unlike him though, I really could not care less how it turns out. It's not a test of shield laws, those are for journalists. It's not a test of free speech, trade secrets were posted.
It's just an individual who screwed up trying to garner support for a lost cause, IMO... and looking kind of lame in the process.
What are the qualifications for a site to be considered a "news site"?
How does one know if a certain peice of info is a "trade secret?"
"EFF petitioned to correct the trial court's manifest error and restore the previously well-settled constitutional protections for a journalist's confidential information, upon which the practice of journalism and the freedom of press depend."
This is my favorite part of the BS. The question of confidentiality for journalists' sources is FAR from being settled. There is no federal shield law and somewhere between 13 and 20 states don't have shield laws of any kind.
Originally posted by Guartho
This is my favorite part of the BS. The question of confidentiality for journalists' sources is FAR from being settled. There is no federal shield law and somewhere between 13 and 20 states don't have shield laws of any kind.
RTFA!
1) Is it right for Apple to surreptitiously bully his ISP, a small company that Apple absolutely dwarfs, instead of the blogger himself, and without even notifying him?
2) Did Apple do absolutely everything it could at its end to find the source of the leak? At what point does the recipient of a leak become guilty, and the source of the leak become innocent?
3) The blogger did assert that he didn't know the information was confidential, and that he took down the information as soon as Apple. Granted, we should take his assertions with a grain of salt, but I'm inclined to give him the benefit of the doubt.
4) Apple's actions set a dangerous precedent that threaten freedom of the press. Taking to its logical extreme, Apple's position implies that journalists cannot protect their sources, ever. This means that no source would ever come forward, and our only news feeds would be government and corporate press releases. For instance, nobody would have revealed that Bush had authorized illegal wiretaps.
At what point does the recipient of a leak become guilty, and the source of the leak become innocent?
There's no point where a recipeint of a leak becomes guilty. The sites (and their operators) who were subpoenaed did not commit any crimes. If the court does not agree with Jason O'Grady (PowerPage) or the higher powers here at AI, they are finding that neither the PowerPage or AppleInsider count as media outlets and that their writers are not journalists. They will then have to turn over any information they have about who leaked information to them (if anyone).
Apple wants to show their employees that leaks will not be tolerated. I worked for a startup company when I got out of high school and even after the product went public we weren't supposed to talk about it. The company had old WWII posters on the wall with phrases like, "Loose lips sink ships", etc.
In the past, Apple has fired people for leaking information. Heck, I think even that poor webdesigner who accidently uploaded a G5 specs picture before they were announced ended up losing his job for stealing Steve Jobs' thunder.
Any employee of Apple that has leaked information to a rumor site has violated their Non Disclouse Agreement (NDA). Imagine that you are running a large company which has major competition. Your company is in a race to release a new product and it has an edge that you believe no other company can duplicate (at least until your product is on the market). Things are going along quite well when all of a sudden, you're reading about your product on the internet 3 months before it is due to launch. Someone leaked information about your top secret project to the press and now your competition knows exactly what you are up to and what they need to make their product better than yours. If they have the resources, they might even get their product out to the market first.
In that situation, wouldn't you not only want, but need to make sure that leaks did not take place? So you send out your legal department to figure out who leaked the information. But the leak did not take place inside your company's walls and there's no way to prove which one of your people went to the press. The next logical step? Try and get the information from these websites. The site is sent a cease and desist letter, but that ship has sailed and the information is already out there. It's not surprising that the legal department would try and get the site taken down until the information was removed.
So the question these judges are trying to answer is, "Do rumor or news publications have an obligation to give up the names of sources who violate trade secrets?" So far, the answer has been, "Yes, they must tell Apple who leaked the information in order to take legal action against those people." Whether or not this holds up remains to be seen.
1) The sanctity of corporate trade secrets is close to being absolute.
2) Websites, due to semantics and a legal technicality, "are not journalists".
These two pillars are weak, and can be easily taken down.
To address 1), let's say that society has only a choice between two extremes:
A) Complete, absolute freedom of the press. Noone who publishes anything, whether a blog or a newspaper can be subpeonaed. Corporate secrets and trade secrets would be leaked for all to see. Company profits would suffer significantly.
Which extreme is preferable? If you say
I know what you're actually advocating is between A) and
As for your point 2), this can also be interpreted as a slippery slope. What is the distinction between a real "journalist" and an "online publication"? Is CNN TV free to protect its sources, but not cnn.com? There are many bloggers who do a far better job of reporting and analyzing the news than actual journalists. Many mainstream press "journalists" are idiots who do nothing more than rehash press releases (example: look at many of the early CNet.com stories about SCO vs. IBM/Linux).
Furthermore, much of the mainstream media has failed to take the Bush administration to task over such controversies as the false premises for the war on Iraq. On the other hand, it took bloggers to force Trent Lott to resign from Congress, the mainstream media having treated him with kid gloves. Who's TRULY defending freedom of the press and oversight of elected officials? A free press acts as a check on corporate and government power and deceit. Why should one form of media (indoctrinated, corporate-controlled) deserve more protection than the other (informal, closer to the people, less organized)?
Your representation and argument about what constitutes a true "journalist" is disingenuous and murky and best, and absolutely misleading, biased and deceitful at worst.
Originally posted by Fran441
There's no point where a recipeint of a leak becomes guilty. The sites (and their operators) who were subpoenaed did not commit any crimes. If the court does not agree with Jason O'Grady (PowerPage) or the higher powers here at AI, they are finding that neither the PowerPage or AppleInsider count as media outlets and that their writers are not journalists. They will then have to turn over any information they have about who leaked information to them (if anyone).
Apple wants to show their employees that leaks will not be tolerated. I worked for a startup company when I got out of high school and even after the product went public we weren't supposed to talk about it. The company had old WWII posters on the wall with phrases like, "Loose lips sink ships", etc.
In the past, Apple has fired people for leaking information. Heck, I think even that poor webdesigner who accidently uploaded a G5 specs picture before they were announced ended up losing his job for stealing Steve Jobs' thunder.
Any employee of Apple that has leaked information to a rumor site has violated their Non Disclouse Agreement (NDA). Imagine that you are running a large company which has major competition. Your company is in a race to release a new product and it has an edge that you believe no other company can duplicate (at least until your product is on the market). Things are going along quite well when all of a sudden, you're reading about your product on the internet 3 months before it is due to launch. Someone leaked information about your top secret project to the press and now your competition knows exactly what you are up to and what they need to make their product better than yours. If they have the resources, they might even get their product out to the market first.
In that situation, wouldn't you not only want, but need to make sure that leaks did not take place? So you send out your legal department to figure out who leaked the information. But the leak did not take place inside your company's walls and there's no way to prove which one of your people went to the press. The next logical step? Try and get the information from these websites. The site is sent a cease and desist letter, but that ship has sailed and the information is already out there. It's not surprising that the legal department would try and get the site taken down until the information was removed.
So the question these judges are trying to answer is, "Do rumor or news publications have an obligation to give up the names of sources who violate trade secrets?" So far, the answer has been, "Yes, they must tell Apple who leaked the information in order to take legal action against those people." Whether or not this holds up remains to be seen.
1) Apple asked for a name of someone who broke a law, the source, and that someone did not break the law to uncover something relevant to the health and safety of society. So it's not a whistleblower and that makes the leak illegal in a civil sense.
2) Someone, Jason, declined.
3) A JUDGE said essentially -- cough up the name, but I'll wait for the full EFF case appeal ruling before I hold you in contempt for not giving me the name.
There is no freedom to break civil or criminal law in freedom of speech. That is long standing and one of the tenets of civil disobedence, e.g. I can say/do something unlawful but am willing to go to jail/be fined afterwards.
Freedom of sppeech is -- Apple can not prevent Jason from posting the article -- that would be prior restraint and against free speech. But the second Jason posted it he opened himself to the civil legal system. Seeing as all Apple wants is the source who provided info illegally, and not a pound of O'Grady's flesh, I'd say he has his panties in a bundle over not much at all. Overall, what he thought about how the system is supposed to work was flawed.
And JC, your arguments are flawed because Deep Throat would be classified as a whistleblower acting in the public's best interests. That makes all the difference.
Originally posted by Hiro
And JC, your arguments are flawed because Deep Throat would be classified as a whistleblower acting in the public's best interests. That makes all the difference.
You're either a reactionary Apple fanboy, or your attention span is very limited. Either way, it's obvious you didn't read most of my careful written post and my carefully considered arguments, choosing to state, quite obtusely, that my "arguments are flawed" on the basis of some vague reference to whistleblower legislation.
The issue I bring up is not a question of the letter of the law. It is about the spirit of one of the most important institutions in any liberal democracy, be it the U.S., Canada, the U.K., etc. That issue pertains to the freedom of the press to protect its sources. Without the ability to protect its sources, no source wishing to remain anonymous would ever come forward again, because a judge could force the media outlet to reveal his or her identity. Without the ability to protect its sources, the press becomes nothing more than an outlet for corporate and government press releases. The people would be blind to what is really happening, and one of the most important checks on government and corporate power would dissapear.
It is not a question of legalities. Apple has the right to proprietary information. Apple has the right to pursue the source of the leak to the fullest extent of the law. Where that right stops, according to the spirt of the constitution of any liberal democracy, is in forcing any press source to disclose their source. Once they have that right, a dangerous precedent is set whereby a judge can order any press outlet to reveal their source for any story.
To give you a concrete example: Diebold. A Diebold employee chose to disclose the fact that their voting machines are deeply flawed, and include "back doors" enabling hackers to manipulate voting results. Diebold is pursuing him in criminal court for three felony charges for revealing "trade secrets":
http://www.bradblog.com/archives/00002472.htm
Seeing as Diebold is acting contrary to the public interest by potentially subverting the democratic process, I have a hard time working up sympathy for Apple being "harmed" by a leaked announcement of a new MacBook a week ahead of its scheduled release.
Originally posted by JavaCowboy
The issue I bring up is not a question of the letter of the law. It is about the spirit of one of the most important institutions in any liberal democracy, be it the U.S., Canada, the U.K., etc. That issue pertains to the freedom of the press to protect its sources. Without the ability to protect its sources, no source wishing to remain anonymous would ever come forward again, because a judge could force the media outlet to reveal his or her identity. Without the ability to protect its sources, the press becomes nothing more than an outlet for corporate and government press releases. The people would be blind to what is really happening, and one of the most important checks on government and corporate power would dissapear.
BZZZT.
You forgot the most important part of that source protection... "for the public good".
If it doesn't meet that qualification, it's not a protected source, according to law and precedent. Sorry.
I've seen so MANY people spew this same bit of FUD about it isn't funny... NOT ALL SOURCES ARE PROTECTED. Get that through your head. A source is only protected in the case of trade secrets, etc, if the information leaked is in the public's best interest.
Diebold case? Public interest. Duh, voting.
Apple vs. O'Grady? NOT PUBLIC INTEREST. Case closed.
but o'grady does not have much of a case here.
Originally posted by Kickaha
BZZZT.
You forgot the most important part of that source protection... "for the public good".
If it doesn't meet that qualification, it's not a protected source, according to law and precedent. Sorry.
I've seen so MANY people spew this same bit of FUD about it isn't funny... NOT ALL SOURCES ARE PROTECTED. Get that through your head. A source is only protected in the case of trade secrets, etc, if the information leaked is in the public's best interest.
Diebold case? Public interest. Duh, voting.
Apple vs. O'Grady? NOT PUBLIC INTEREST. Case closed.
You have far too much confidence in the infallability of the judiciary, especially in regard to determining what is in "the public interest" versus what is not. The distinction is not as clear as you make it appear to be.
It was a judge who largely let Microsoft off the hook during the anti-trust trial. It was a group of judges (Supreme Court) that suspended the vote recounts in Florida.
Given the fact that the Diebold trial is about "trade secrets" and "proprietary information", which is on the surface the same argument that Apple is using, it's not inconceivable that an unlucky pick of a judge ("Uh, oh! We drew Judge Jackson!") would be unable to distinguish between Apple's legimate interests, and Diebold's 100% bogus claim to any sort of damages or retaliation from a whistleblower who tried to do the right thing.
See what I mean by "slippery slope" and "dangerous precedent"?
Originally posted by rok
okay, JC, i R'dTFA, and i will tell you this -- jason o'grady's main point -- his MAIN POINT -- is that this is not something WORTH getting subpoenaed over, with his "Yawn." comment or his Apple "can claim that their cafeteria menu is a "trade secret" then sue your ass off if you post it on your blog." you see? that's his main defense. that apple is getting too worked up over this, and then layering i under a "protection of free speech" mantra. so when does it become something subpoena worthy? when o'grady leaks significant info that apple will be bought out by microsoft and their stock price plummets (or soars, who knows?), affecting BILLIONS of stock-holder investment dollars? where is that line drawn, and why does jason o'grady get to say where it gets drawn? the fact is, he doesn't. and if apple does NOT protect trade secrets, no matter how small, they will have an even harder time protecting them down the road as a precedent will have been set that they "don't mind so much." steve and apple have managed to change the course of the "major announcement at trade shows and ONLY trade shows" business cycle, and the ridiculously leaky apple from the ameilo days, and they haven't done it by playing nice. sometimes they haven't even been SANE about it (remember when ATi's contract got all but killed when they leaked the cube specs BY ACCIDENT ont he trade show floor the night BEFORE it was to be debuted? at least steve seems a BIT calmer these days, but ATi is still licking their wounds on that one, and have finally become the main video supplier again. apple have to kill rumors when they start, and sometimes release stuff at oddball times to keep people watching.
but o'grady does not have much of a case here.
You seem to have great difficulty understanding the position I'm presenting in my arguments. This is not about free speech. This about the right of journalists to protect legitimate sources and the very survival of the free press.
What's more important? Corporate profits, or the sanctitity and impartiality of the voting process?
Given the rhetoric over "corporate trade secrets", it's not inconceivable that we might have to choose between the two, especially in regard to the Diebold "trade secrets" case.
Originally posted by JavaCowboy
You have far too much confidence in the infallability of the judiciary, especially in regard to determining what is in "the public interest" versus what is not. The distinction is not as clear as you make it appear to be.
It was a judge who largely let Microsoft off the hook during the anti-trust trial. It was a group of judges (Supreme Court) that suspended the vote recounts in Florida.
Neither of which have jack-all to do with this subject, this trial, or this thread, but points for trying to pull in irrelevant emotional issues to muddy the conversation.
Given the fact that the Diebold trial is about "trade secrets" and "proprietary information", which is on the surface the same argument that Apple is using, it's not inconceivable that an unlucky pick of a judge ("Uh, oh! We drew Judge Jackson!") would be unable to distinguish between Apple's legimate interests, and Diebold's 100% bogus claim to any sort of damages or retaliation from a whistleblower who tried to do the right thing.
See what I mean by "slippery slope" and "dangerous precedent"?
So let me get this straight... because *some* judge, *might* *conceivably* rule that what is pretty damned obviously 'public interest' (voting) isn't, you want to make sure that *ALL* sources are private, no matter how idiotic the reason.
Okay.
Tell you what, I'll start a blog, and start printing trash about you. Made up? Real? Who cares? I can claim 'sources say' and when you want to sue for libel, tough noogies. Sources are protected. Fair?
Of course not.
Slippery slopes... dangerous precedent... works both ways, bub.
Whoever leaked broke their contractual obligations with Apple. Apple has a right to pursue those leaks. The ISP presumably had information that could trace those leaks. That's a legitimate subpoena. They can fight it, and they might win, but the grounds are valid. O'Grady published those leaks. Whether they were massively ground breaking or not, is irrelevant. What *IS* relevant is if the leak was in the public good. It's pretty obvious it wasn't. Therefore the sources aren't protected. End of story.
You have far too much confidence in the intelligence, professionalism, and infallibility of anyone who wants to proclaim themselves a 'journalist'.
And really, it's not about corporate profits, is it? It's about corporations being able to exist, do research, bring products to market, and produce, in the end, *better* products. Without the profit incentive, they simply won't. Trade secrets are an important part of that picture, and creating a blanket shield law for all sources, regardless of the information being leaked, would only destroy that incentive. You want to create either/or scenarios, you need to be honest and run *both* possibilities to their conclusions, not just one, and then dangling out one doomsday and one vague outcome as a 'choice'. That's not honest, it's not clear thinking, and it's not any choice at all.
Look, I want the whistleblowers, etc, to come forward as much as you do, when it is something *in the public interest*. That's a highly important and precious element of a free society, but... this simply wasn't in that class. The entire public interest test exists *PRECISELY* to distinguish between sources that should be protected, and those that shouldn't. It *prevents* us having to choose an either/or situation that you seem intent on ramming down our throats as a strawman. The either/or doesn't exist, because the public interest test exists. That's the way it works.
By removing the public interest test, which you seem intent on doing, THAT is what forces it into an either/or situation... in which case your slippery slope argument starts to have merit. Unfortunately for you, but fortunately for us, your either/or is a fear tactic based on sand.
Originally posted by Kickaha
Neither of which have jack-all to do with this subject, this trial, or this thread, but points for trying to pull in irrelevant emotional issues to muddy the conversation.
The statement that any judgement of whether or not to subpoena a journalist will be based absolutely 100% of the time on "the public interest" implies an infallible judiciary. This is a fallacy and these two examples dispel the implication of an infallible judiciary, so this is not a non sequitur by any stretch of the imagination.
So let me get this straight... because *some* judge, *might* *conceivably* rule that what is pretty damned obviously 'public interest' (voting) isn't, you want to make sure that *ALL* sources are private, no matter how idiotic the reason.
Ever hear of corrupt or biased judges? I have. I'm surprised you haven't.
Also, the two examples I provided above indicate that this has already happened, and is far beyond a purely hypothetical possibility.
Okay.
Tell you what, I'll start a blog, and start printing trash about you. Made up? Real? Who cares? I can claim 'sources say' and when you want to sue for libel, tough noogies. Sources are protected. Fair?
Of course not.
I don't care if you libel me in your blog because I know nobody will pay attention to it, and probably only one person will ever read it. You might as well be shouting in the vacuum of space.
Besides, this IS a non sequitur, since Apple has only gone after bloggers who have disclosed TRUE information about trade secrets
of upcoming product releases. They don't go after people who lie or who make stuff up. You're way off base with that comment.
Slippery slopes... dangerous precedent... works both ways, bub.
Whoever leaked broke their contractual obligations with Apple. Apple has a right to pursue those leaks. The ISP presumably had information that could trace those leaks. That's a legitimate subpoena. They can fight it, and they might win, but the grounds are valid. O'Grady published those leaks. Whether they were massively ground breaking or not, is irrelevant. What *IS* relevant is if the leak was in the public good. It's pretty obvious it wasn't. Therefore the sources aren't protected. End of story.
Funny, those are probably exactly the same arguments that the lawyers for Diebold are probably using to prosecute the source of their leak. They could conceivably claim that the disclosure of the vulnerabilities to their voting machines would work against the "public good", because it means that more votes counting would be circumvented than before.
So my slippery slope argument stands. Now that the judge in the Gonzales vs. Google case upheld the DoJ's right to subpoena search engines for search results, anybody could subpoena anybody for anything. A fishing expedition is NOT grounds for a subpoena, since there was no criminal investigation involved. Again, this blows the "all judges are infallible" argument out of the water.
BTW, did I say that the source of the leak is innocent? NO! I said the recipient of the leak is. The source of the leak broke the law. Apple should find the source of the leak by conducting an internal investigation. It's possible the recipient initiated the leak, but this is extremely difficult to prove.
You have far too much confidence in the intelligence, professionalism, and infallibility of anyone who wants to proclaim themselves a 'journalist'.
Where the hell did I say or imply this?!? Talk about a straw man argument! You're putting words in my mouth and are making stuff up as you go along. HERE is what I said, verbatim:
------
What is the distinction between a real "journalist" and an "online publication"? Is CNN TV free to protect its sources, but not cnn.com? There are many bloggers who do a far better job of reporting and analyzing the news than actual journalists. Many mainstream press "journalists" are idiots who do nothing more than rehash press releases (example: look at many of the early CNet.com stories about SCO vs. IBM/Linux).
------
I said some mainstream journalists suck and some blogger journalists are excellent. My implication was that the opposite is also true.
And really, it's not about corporate profits, is it? It's about corporations being able to exist, do research, bring products to market, and produce, in the end, *better* products. Without the profit incentive, they simply won't. Trade secrets are an important part of that picture, and creating a blanket shield law for all sources, regardless of the information being leaked, would only destroy that incentive. You want to create either/or scenarios, you need to be honest and run *both* possibilities to their conclusions, not just one, and then dangling out one doomsday and one vague outcome as a 'choice'. That's not honest, it's not clear thinking, and it's not any choice at all.
Look, I want the whistleblowers, etc, to come forward as much as you do, when it is something *in the public interest*. That's a highly important and precious element of a free society, but... this simply wasn't in that class. The entire public interest test exists *PRECISELY* to distinguish between sources that should be protected, and those that shouldn't. It *prevents* us having to choose an either/or situation that you seem intent on ramming down our throats as a strawman. The either/or doesn't exist, because the public interest test exists. That's the way it works.
By removing the public interest test, which you seem intent on doing, THAT is what forces it into an either/or situation... in which case your slippery slope argument starts to have merit. Unfortunately for you, but fortunately for us, your either/or is a fear tactic based on sand.
Did I say corporations should no longer exist? No. Another straw man on your part. I said that corporate profits should not supersede the public interest, like, I don't know, the right to vote and have that vote counted accurately?
I'm not removing the public interest test. Judges of dubious, uh, judgement, are doing it themselves. Look at the Microsoft, the Florida recount case, and the Google search results subpoena cases. These all prove that judges do not properly conduct the "public interest" "test" 100% of the time. If they can't assess whether or not a subpoena is in the public interest, then they effectively cannot be counted on as a check on government or corporate power.
So I ask you again, which is preferable? Corporate profits or a free press?
It is indeed an either-or question, and there indeed is a slippery slope. You're "evidence" is suspect at best and totally inadmissible at worst.
Wait a minute... some guy is making money off of someone else's trade secrets and when he gets called on it, he plays the victim?
Riiiiiiiiiiiiiiiiight!
I'm out as well.