The Apple Core

Jason D. O'Grady & David Morgenstern

Apple vs. Me

By Jason D. O'Grady | April 6, 2006, 5:35am PDT

Would you ever want to be on the business end of legal action from a company with US$9 billion in cash? What about being targeted for deletion by one of most powerful multi-national corporations in the world? What if a company with US$14 billion in revenue and 14,000 employees wanted a piece of your ass?

Welcome to my world.

This case is not about me, it’s not about Apple, and it’s not about the technology industry. It’s about the First Amendment. On December 13, 2005 Apple filed suit against "Does 1-20" in a Santa Clara California court. The company obtained a court order that allows it to issue subpoenas to PowerPage (and AppleInsider) for the names of the "Does" who allegedly leaked information. A nice Christmas card from the company that I have loved and supported for years.

But Apple didn’t subpoena me directly, they instead set their legal sights on the low hanging fruit - my ISP - a small company that was handling my email and Web hosting in addition to a few other clients. What’s sad about Apple’s approach here was that their attorneys attempted to intimidate a small host/developer/ISP with legal threats that look pretty daunting when coming from a company with US$14B in revenue on their balance sheet.

At issue was a series of stories that I ran in October 2004 about an upcoming product that was in development. Was it the next great PowerBook? Maybe the a red hot iPod? Maybe a killer new version of the OS? Nah. The stories about a FireWire breakout box for GarageBand, code-named "Asteroid." Yawn.

After the subpoenas were issued the Electronic Frontier Foundation (EFF) approached me and offered to defend me pro bono, arguing that the anonymity of my sources are protected by the same laws that protect sources who leak information to journalists.

A Santa Clara County judge decided that journalists and their sources lose constitutional protection when they publish information that a business classifies as a "trade secret." The irony here is that a large corporation can claim that their cafeteria menu is a "trade secret" then sue your ass off if you post it on your blog. The EFF filed a petition to have that decision overturned. (You can read the details of the case on the EFF Web site.)

On April 20, 2006 the Electronic Frontier Foundation (EFF) will have that petition heard by the California Court of Appeal. The purpose of the hearing is so that a judge can decide whether the Santa Clara County court made a mistake when it refused to protect my rights under the First Amendment.

A friend made one of the best analogies about the situation that I’ve heard: He told me that the reason why a house cat doesn’t eat you is because it’s smaller than you. He went on to say that if the cat was larger than you it sure as hell would eat you. It appears that Apple used to be a small, friendly cat and now (thanks in large part to the success of the iPod) it’s a whole lot bigger - and starting to eat people. "Tiger" indeed.

My position on the Asteroid postings is that I didn’t steal the information and I didn’t ask for it. Someone volunteered it to me and it looked credible, so I posted it. It wasn’t marked confidential, trade secret or any such thing but it looked legit to me, so I ran it. When Apple later asked me to remove it, I complied.

Apple feels that independent online journalists are not protected by the First Amendment of the U.S. Constitution and that a journalists confidential communications and sources should be exposed to them or any large corporation that doesn’t like what they publish - at will. I think that this is completely wrong on several levels.

Here’s why you should be scared:

This case is not about me, it’s not about Apple and it’s not about the technology industry. It’s about the First Amendment. If we don’t have a free press and protection under the First Amendment large corporations can sue any journalist publishing something that they don’t agree with. The last time I checked, this was the United States of America - not communist China - and we are protected by a wonderful document called The Constitution.

Imagine if Apple wanted to raid your email in-box then sue you for saying something they didn’t like. Something has to be done to protect the press from paranoid corporations bent on controlling the media. This case doesn’t affect me, it affects every citizen in the United States.

Blogger and fellow at Harvard’s Berkman Center, Derek Slater, wrote on Thursday that the lower court’s decision threatens all journalists.

"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 decision will have a profound affect on the rights to free speech we all enjoy. Support the EFF and bloggers rights.

But don’t take my word for it, read the Amicus Briefs filed in this case by several industry luminaries, including:

- Jack M. Balkin, professor of Constitutional law and the First Amendment and Director of The Information Society Project at Yale Law School.
- Eugene Volokh, professor of law at UCLA School of Law, where he teaches and writes about First Amendment law.
- A. Michael Froomkin, professor of Law at the University of Miami School of Law and well-known expert on issues of Internet governance.
- Julian Dibbell, contributing editor at Wired magazine
- Rebecca MacKinnon, journalist, media consultant, blogger and former CNN correspondent and Bureau Chief in Beijing and Tokyo.
- Glenn Harlan Reynolds, law professor at the University of Tennessee, publisher of InstaPundit and writer for MSNBC and The Wall Street Journal.
- Jay Rosen, NYU faculty member, press critic and writer whose primary focus is the media’s role in a democracy.
- Scott Rosenberg, Senior Editor of Technology at Salon.com.

Some of the organizations that have supported me in this case include:

- The Associated Press
- The Hearst Corporation
- Los Angeles Times Communications
- The San Jose Mercury News
- The Copley Press
- The Mcclatchy Company
- Gawker Media Inc.
- Society Of Professional Journalists
- The First Amendment Project

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More from “The Apple Core”

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Jason O'Grady is a journalist and author specializing in mobile technology. He has published six books on Apple and mobile gadgets and his PowerPage blog has been publishing for over 15 years.

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jywhy888 8th Mar

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yawn

Jens T. 6th Apr 2006

Oh god, not the old >"We bloggers are journalists too, so we
can post whatever rumor we hear without fact-checking and are
still protected by the constitution"-tirade again ...

Okay, by the numbers:

1. Apple announces a product. That's news. You publish it.
That's reporting. You review the product, expose its possible
flaws, research how the product came about, who was involved
in its conception, how it might affect the competition or the
marketplace, etc. That's investigative reporting.

2. Apple doesn't announce anything. You post a story about
what Aplle might announce. That's gossip.

3. Apple doesn't announce anything. You get inside information
about a new product that is obviously not for public
consumption (because if it were, Apple would have puiblished
it). You publish it anyway. That's revealing trade secrets. You get
subpoenaed to reveal your "source" and start whining about the
First Amendment. That's lame.

Really, I don't understand how you people can invoke the term
"journalism" and keep a straight face every time when all you do
is chewing the fat.

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Not simply about bloggers...

Third of Five 6th Apr 2006

Some of the amicus curiae briefs here have been filed by newspapers, newswire organizations, companies that own newspapers, editors, journalists, and law professors (i.e., those who know enough about the law that they can make quite a lucrative career out of passing their wisdom to others). This isn't just about bloggers.

It's a possibility that the defenders of the bloggers in this case are acting out of enlightened self-interest (in other words, in case similar moves are made against them). However, this isn't some sort of "corporate espionage" or the like. He's not saying "hey Microsoft/iRiver/Creative/Google/etc., make this before they do."

I have to wonder if any other companies are doing things like this. Or, for that matter, if people would be as sympathetic to any other company attempting to do this as they are to Apple (poor Apple; they might make only about $475M instead of $500M...).

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other companies ...

Jens T. 6th Apr 2006

JohnRoche wrote: have to wonder if any other companies are
doing things like this. Or, for that matter, if people would be as
sympathetic to any other company attempting to do this as they
are to Apple (poor Apple; they might make only about $475M
instead of $500M...).

Probably not, since there hardly are many other companies
who are under that kind of scrutiny as Apple is. (Maybe I'm naive
but - is there a site like CrazyDellRumors?).

What makes it tough for Apple to be cavalier about ThinkSecret
et al is the fact that these sites have again and again posted
wrong information about Apple's upcoming products,
everytime resulting in a high pitched media frenzy and
consequently a big dissapointment when those high flying
rumors didn't turn out to be true, which in turn has resulted in a
drop in Apple's stock price. This seriously affects Apples
business! It's not about stealing Jobs the show, it's about
(sorry for being melodramatic) the welfare of the company.

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You are dead wrong

ShadeTree 7th Apr 2006

the reason Apple is making a stink is because the information is accurate. They could hardly sue someone over trade secrets if the information were false.

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High Pitched Media Frenzy...

Wolfie2K3 7th Apr 2006

What makes it tough for Apple to be cavalier about ThinkSecret et al is the fact that these sites have again and again posted wrong information about Apple's upcoming products, everytime resulting in a high pitched media frenzy and consequently a big dissapointment when those high flying rumors didn't turn out to be true, which in turn has resulted in a drop in Apple's stock price. This seriously affects Apples business! It's not about stealing Jobs the show, it's about (sorry for being melodramatic) the welfare of the company.

Exactly HOW would an early posting affect Apple's business..? For the item being reported on in Grady's blog, there is a LIMITED market - musicians who want to use their Macs to mix music with Garage Band.

Now then, you're a musician. You have a need for such a product. You've got the option of buying one from a third party or waiting a few weeks or a month or two until Apple releases their version?

If anything it might harm the 3rd party's business if you were to choose to wait until Apple released their product.

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Seriously Folks......

Cayble 4th May 2006

One of the most important features found in the freethinking democratic western world is that of ?freedom of speech?. Freedom of speech is far more important then simply keeping those who report, or even speculate on, possible news worthy subjects out of jail for speaking their mind. Freedom of speech is of deadly importance to the proper functioning of a free and democratic society, as it is the ever-present reminder to those with authority and power that if they do not play fairly as a member of society they run the risk of having their transgressions made public.

From the earliest days of free speech there has always been the recognition that such an open policy may on occasion lead to some unfair or misleading results and even more frequently, public exposure of information that some may consider to be private. Every time freedom of speech causes one of these problems to someone, the same argument arises from those who feel they have been wronged, or those who sympathize with their claims. That argument is; that freedom of speech must be curtailed, or at least come under more stringent controls in order to avoid particular unpleasantries.

Without going into a lengthy diatribe on the how and why such an argument fails miserably in a free society, just keep in mind; for every situation where you might want to eliminate free speech, there will also be analogous situations where freedom of speech would also have to be curtailed where you would not agree. This has always been the problem, and very likely always will be a problem. If you step out onto the very slippery slope of curbing free speech, you will soon have a train of bandwagons all wanting to join in order to have their image protected under new restrictive speech laws.

There is no question that it would be such a nice world if nobody could say anything we didn?t want them too, but we could talk as we seen fit. You can always claim ?this case is an exception; free speech should not apply!!!? On the other hand, I have never heard a single person of any ilk who has ever claimed that what they have said should not be allowed due to free speech; in reality we all want free speech and therefore must we allow it for all others.

It leaves a very bad odor around a country that begins to punish any person who fairly reports what appears newsworthy. If it was a trade secret; too bloody bad. The legal system has recourse to deal with those sworn to protect trade secrets. If they are having difficulties hunting down the chatter box who leaked the secret, that is Apples problem, at least if you are comparing the interests of an entire nation in regard to the importance of freedom of speech as compared that countries interests as far as Apples trade secrets go.

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not about you

JBracy 6th Apr 2006

Basically I don't think Apple gives a &@!% about you. They want
to know who within their organization is revealing trade secrets,
and you are refusing to give them that information and you are
the public face of the revelation of that information.

So yes, in fact you SHOULD have the first amendment right to
say whatever you want on your website. However you should
NOT have the right to protect someone who is violating NDA
agreements, and revealing trade secrets.

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A small rewrite of your post

Letophoro 6th Apr 2006

Okay, by the numbers:

1. The government announces something. That's news. You publish it. That's reporting. You review the announcement, expose its possible flaws, research how the announcement came about, who was involved in its conception, how it might affect the citizenry or world opinion, etc. That's investigative reporting.

2. The government doesn't announce anything. You post a story about what the government might announce. That's gossip.

3. The government doesn't announce anything. You get inside information about something that is obviously not for public consumption (because if it were, the government would have puiblished it). You publish it anyway. That's revealing secrets. You get subpoenaed to reveal your "source" and start whining about the First Amendment. That's lame.

If the First Amendment doesn't apply to everyone, then it applies to no-one. The only difference between the 'journalists' that brought you the 'Korans are being flushed down toilets at GITMO' story and bloggers is scale.

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More than scale

rapson 6th Apr 2006

You're using the tried-and-true rhetorical device of extending an argument to absurd lengths to ridicule it. Comparing Apple's trade secrets with national security issues is disingenuous at best. There can be no comparison. There are plenty of government "secrets" that shouldn't be revealed, just as there are plenty that should be. That's what the courts are for. This isn't a case of weighing national security against the public's right to know. Where is the overriding public interest in this?

Apple's trade secrets do not affect the general welfare of US citizens, so from that respect this action seems rather trivial. But Apple has the right to protect its trade secrets, and it has the right to attempt to find out who may have violated a non-disclosure agreement.

Carl Rapson

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A different perspective

Letophoro 6th Apr 2006

"You're using the tried-and-true rhetorical device of extending an argument to absurd lengths to ridicule it. Comparing Apple's trade secrets with national security issues is disingenuous at best. There can be no comparison. There are plenty of government "secrets" that shouldn't be revealed, just as there are plenty that should be. That's what the courts are for."

Did I ever say that all secrets, government or otherwise, should be revealed? No, I didn't. Once the secret is revealed though, the process that protects bloggers and other journalists should be the same.

"This isn't a case of weighing national security against the public's right to know. Where is the overriding public interest in this?"

Where was the overriding public interest in publishing the unconfirmed Koran story? You know, the story that was not only factually incorect, but led to the deaths of several people around the world? For that matter, where is the overriding public interest in allowing Apple to trample the First Amendment?

"Apple's trade secrets do not affect the general welfare of US citizens, so from that respect this action seems rather trivial. But Apple has the right to protect its trade secrets, and it has the right to attempt to find out who may have violated a non-disclosure agreement."

I never said Apple didn't have a right to protect their secrets or that their secrets affected the general welfare. The methodology chosen for attempting to find out the identities of any leakers does have the possibility for weakening the First Amendment.

I am simply saying that Apple's chosen method of attack has serious national repercussions that may have an effect far out of proportion to the value of Apple's secrets. Is it worth losing the protections that the First Amendment provides simply to protect Apple's profits?

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True to a point....

viking2007@... 20th Apr 2006

Yes, Apple has the right to protect their interests but they should do an INTERNAL investigation to find the source of the NDA leak.

The first amendment IS the first amendment. *I* have the right to put up whatever I want and unless it seriously jeapordizes something I should never have to disclose the source, thereby losing ANY chance of getting additional information from ANY source since I would then be touted as a "Narc" for giving up the name.

Is the person that violated the NDA to be above the law or blame in this issue? NO they aren't. They should be held accountable for breaking contract with the company THEY signed with.

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Uhm ...

Jens T. 6th Apr 2006

Letophoro, you have lost me:

The only difference between the 'journalists' that brought you
the 'Korans are being flushed down toilets at GITMO' story and
bloggers is scale.

So you are comparing the development of a Firewire audio-
device with the breaking of international law at Guantanamo???

If you really believe that, I can safely ignore any of your
comments from now on. You obviously live on another planet
where common sense and moral standards don't apply.

To clarify: If Apple had been under suspicion of being involved
in some illegal or grossly amoral activity, I would be the first to
defend the reporters right to keep their sources confidential.
But this is just gossip. It's a frigging Firewire device!!! And
Jason O'Grady isn't Bob Woodward, even if he'd like to see
himself up there ...

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Re: Uhm...

Letophoro 6th Apr 2006

"So you are comparing the development of a Firewire audio-device with the breaking of international law at Guantanamo???"

Not at all. I am comparing the ability to report about them, and not the subject being covered. News is news, even if it's as little as 'A small fire was put out in Gandma Moses' kitchen,' or as big as '700,000 people died when an atomic bomb was detonated in New York City.' The stories being covered differ vastly in scale and importance. The ability to report on them to begin with should be the same.

"To clarify: If Apple had been under suspicion of being involved in some illegal or grossly amoral activity, I would be the first to defend the reporters right to keep their sources confidential. But this is just gossip. It's a frigging Firewire device!!!"

At least the Firewire device story was accurate. Since the GITMO story turned out to be nothing but gossip, do you believe that the reporters should be forced to turn over their sources? That way, the deaths of those people around the world can be laid at those sources' feet. What about the next time when someone says 'He needs to turn over his sources so that we can prove it's nothing but gossip.'? Is okay to protect sources only if the target of the story is accused of breaking the law?

"And Jason O'Grady isn't Bob Woodward, even if he'd like to see himself up there ..."

Where did I say he was? I did mention that little matter of scale.

Regardless, First Amendment protections should apply to all reporters if they are to apply to any. If you want O'grady to turn over his sources, then you should logically want all reporters regardless of status to turn over their sources with no concern about the story being covered. It's not the story that's important in this matter, it's the ability to report on the story.

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Actually, you're wrong...

Mixotic 6th Apr 2006

The idea of a reporter protecting their source is designed to
protect the source, not the reporter. It is meant to be used in
cases where the safety and wellbeing of an individual is at risk
because the entity they are informing against may take
dangerous or illegal action to intimidate or silence the source.
This is not the case here...

Apple is taking preventative measures to stop "presumably" an
employee from leaking additional information in the future, a
clear violation of the agreement they signed with Apple when
they started work. Apple is simply trying to remove the person
who leaked the information from within the organization.

You can't sign a contract and then just decide that you don't like
the rules any more, so you're not going to play by them. And
Jason, you don;t hav ethe legal right to protect someone who
does this either.

What you can compare it to is someone who confesses a crime
to someone the police eventually question for information. If
they don't reveal the information, they can be charged with
aiding the criminal.

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The US Supreme court says I'm right.

Letophoro 6th Apr 2006

Here's a link to the Wikipedia entry on privacy. The relevant line here is:
In Bartnicki v. Vopper, 532 U.S. 514 (2001) Docket Number: 99-1687, US Supreme Court ruled 6-3 that someone cannot be held liable in court for publishing or broadcasting intercepted contents of telephone calls or other electronic communications. The protection extends even when the publisher or broadcaster knows that someone else illegally intercepted the communication to obtain the information, as long as that information is of public concern.

Note that in the case above, the interception would be criminal. That is in contrast to the civil case of an NDA breach.

"The idea of a reporter protecting their source is designed to protect the source, not the reporter. It is meant to be used in cases where the safety and wellbeing of an individual is at risk because the entity they are informing against may take
dangerous or illegal action to intimidate or silence the source.
This is not the case here..."

There are plenty of anonymous sources out there that simply dish dirt on politicians. You're saying that they should all be exposed because they might have signed an agreement that said they wouldn't dish dirt? After all, what's the worst a politician is going to do, fire the guy/gal? Who are you to say? More than one politician's aide has died/disappeared.

"What you can compare it to is someone who confesses a crime to someone the police eventually question for information. If they don't reveal the information, they can be charged with aiding the criminal."

That is a criminal matter, and not a civil matter as the NDA breach is.

There may be times when the public need overrides the First Amendment protections. This is not one of those times. This is simply one entity (Apple) attempting to harass another entity (O'Grady) into surrendering information.

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Public interest does not equal public concern...

Mixotic 7th Apr 2006

It amazes me that someone can read something and completely
ignore the pertinent information. As you stated in your post, and
included in the Supreme Court Decision, this only applies
"...as long as that information is of public concern."

Where's the public concern? just becuase there are a bunch of
fanboys who want the latest Apple news doesn't mean that they
are entitled to it. What's the point of an NDA then? If all you have
to do to show concern is demostrate that there is a passing
interest in something, then this whole discussion is pointless.

Either all information is free, and everyone gets access to it all
the time, or some infromation is privileged, and the people who
control different information decide who gets access to it. You
can't have it both ways. I think we all know that the latter is the
case, as has been demonstrated time and again by patent and
copyright attorneys.

"There are plenty of anonymous sources out there that simply
dish dirt on politicians. You're saying that they should all be
exposed because they might have signed an agreement that said
they wouldn't dish dirt?"

In cases such as these, the source is verified through
investigative reporting. If the information is untrue, and can't be
verified, it is labeled as slander. Jason has yet to post anything
about the investigation he conducted. He has been asked
repeatedly in this forum to provide information on the
investigation he performed to verify his source, as well as asked
to provide some information regarding further investigation
(spoke with other parties? received the information from
multiple reliable sources? asked Apple to comment on the
information?). He hasn't given us anything, and I'm sorry, but the
burden of proof is on him in this area. We can't just expect that
'he did a good job' following up on the information.

Simply receiving an email from 'apple.com' is not enough.
Everyone reading this knows how easy it is to spoof an email
address. In all likelyhood, the person who sent the information
did not send it using Apple computers or servers
because they knew it would leave a trail.

If I call the Washington Post and tell then that Bush put his penis
in my ear when I was 12, they don't just run with it. They do a
HUGE amount of investigation to make sure the information is
true before they print it.

Do you know why? (I'll give you a hint...it has to do with the First
Amendment, and reporters NOT having the ability to print
whatever they damn well please just because someone says it.)

It's called journalistic integrity.

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Americans not bound by "international law"

techboy_z 7th Apr 2006

"So you are comparing the development of a Firewire audio-
device with the breaking of international law at Guantanamo???"

Last time I checked, we are a sovereign nation. We fought a Revolutionary War to gain freedom from England, and set up our own government by the people. Our Constitution defines what this government consists of, and how laws are made that govern us. Any laws, therefore, which are not made by the U.S. Congress *voted into office by the people*, are not U.S. laws, and do not apply to Americans! Laws cannot be established by treaties. This is a perversion of the U.S. Constitution. Only our elected representatives have the power to enact laws over us.

I realize this may seem strange to foreigners...but you really should be questioning this too. And push for sovereignty of your nation. The way to make "international" laws is to pass national laws that happen to agree with what other nations' laws are. Not to sign treaties that establish "laws".

So there you have it - my little rant about how our representation is being taken away by the oligarchists-that-be.

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blech...

drsparks@... 12th Apr 2006

"To clarify: If Apple had been under suspicion of being involved in some illegal or grossly amoral activity, I would be the first to defend the reporters right to keep their sources confidential.
But this is just gossip. It's a frigging Firewire device!!! And Jason O'Grady isn't Bob Woodward, even if he'd like to see himself up there ..."

This is otherwise known as a double standard.

Just because it wasn't news worthy enough for you to put down your tall, double-shot, extra-hot, soy mocha, doesn't mean it isn't newsworthy to some.

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You missed the real issue...

No_Ax_to_Grind 6th Apr 2006

Define a "Trade Secret". Does a new product that Steve Jobs will announce next week qualify as a "trade secret"? In my opinion it does not. What really happened is the reporter/blogger stole Steve's thunder and it made him angry, nothing more.

IMHO in order to say it's a "trade secret" it must be kept a secret. (The formula for Coca Cola) The real test should be, was there any harm or potentical harm done? Did revealing this so called "trade secret" cause any financial harm to Apple? Obviously it didn't, they told the world the next week.

All this really comes down to is Steve boy got his wittle ego bruised so he put the lawyers on the reporter/blogger/ISP, nothing more.

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yup..

Spicoli's Avenger 6th Apr 2006

"All this really comes down to is Steve boy got his wittle ego bruised so he put the lawyers on the reporter/blogger/ISP, nothing more."

Sounds very Microsofty of him.. wink

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But the thunder is what helps Apple to sell! (NT)

Mikael_z 7th Apr 2006

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Not a chance...

No_Ax_to_Grind 7th Apr 2006

Most companies ENJOY the PR hype before releasing a product, even Apple. (Unless of course it makes Jobs look stupid.)

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Message has been deleted.

nomorems 6th Apr 2006

(NT)

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YOU are scaring me...

nothingness 7th Apr 2006

Listen to what you are saying, "no one knows more than big corporations and government bodies, so if they feel little people have said/done something they don't like, they should be able to do anything they want to the little people." Thanks buddy, it's folks like you that makes Facism exists alive and well today.

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By the Numbers

The King's Servant 7th Apr 2006

Okay, by the numbers:

1. Apple announces a product. That's a news release. You publish it. That's being a rational thinker; quid pro quo. You review the product, expose its possible flaws, research how the product came about, who was involved in its conception, how it might affect the competition or the marketplace, etc. That's reporting.

2. Apple doesn't announce anything. You post a story about what Aplle might announce. That's just crazy talk! You have to have some source or you are just making it up, silly!.

3. Apple doesn't announce anything. You get inside information i.e., data from an informed source, about a new product that is obviously not yet inteded for public consumption (because Apple has not yet published it). You publish it anyway. That's investigative reporting because you investigated to find out something that was not yet known and made it known. You get subpoenaed to reveal your "source" --why is "souce" in quotes; either it is a source or we go back to number 2-- and start taking legal action to protect your rights under the First Amendment. That's ballsy.

Compare:

1. "Did you hear? Google is working on puting Google Mars into the Google Earth desktop client!"
"Yes, I read it on Google two weeks ago."

2. "Well I suppose they will be gathering the Saturn data soon to do the same thing with that."
"Really? Why do you say that? Is there any reasonable interest in Saturn now or are they trying to create a buzz to start something?"

3. "It seems like the natural next step. A source I have at NASA informed me that there has been inquiries by persons who have worked with Google on previous projects about the availability of all the collective works of NASA concerning the Saturn surface along with its moons.
"Nothing official from any of my sources at Google but they did say that the Google Earth and Google Mars projects can be applied to any globoid. This could mean a Google Sun, Venus, Mercury, Jupiter, Uranus, Neptune or Pluto. All they would need is the empirical data of the surface along with photographs."
"Wow! That would be cool. Keep me informed of any new news."

DISCLAIMER: the above dialogs are entirely ficticious and any similarities to actual persons or events are coincidental. The places however are real.

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When can you speak?

Cody Yarbrough 10th Apr 2006

If you are not allowed to say what you want, is it still free speech?
Here's you argument, pointed back at you:

I don't think you should be allowed to criticise the news story,
because you have no journalism license. So, please do not speak.

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You sound like Stephen Colbert

glocks out 4th May 2006

The President is the decider. He makes the decisions. The Press Secretary tells the reports. The reporters type it out and report it. Pass it through the spell check and let it go.

Journalists are glorified press-release dispensers?

He did not go about obtaining the information in an illegal manner. He was not under contract with Apple regarding its release of information. It's not like he posted the products blueprints.

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Message has been deleted.

myfevertoy Updated - 26th Oct 2006

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fdsdd

jywhy888 8th Mar

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Apple going after corporate secrets terrorists like you

Prognosticator 6th Apr 2006

Good for Apple.
The importance of companies trade secrets and information of new products is more important not than ever. Heard of the term " loose lips sinks ships?" ?

I applaud Apple for going after corporate trade secrets terrorists like you. YOU profit by getting readers to see your "juicy information" at THEIR expence. Shame on you. Good for Apple for going after someone with a wallet.

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"corporate trade secrets terrorists"?!

Third of Five 6th Apr 2006

Setting aside the use of "terrorist" to frame the terms of debate (seriously though, can we get some sort of moratorium on that sort of thing?*), wouldn't "leaks" provide free publicity to the product, thus increasing demand/preorders/etc.?

Besides, what does Apple really have to gain from suing people who do this? They will inevitably come across as litigious, biting the hands that have fed them so much over the years. Furthermore, this will chill their relationship with the press, and no company wants that to happen. Basically, Apple will come off as the tin-pot dictator summarily executing the one villager who accidentally coughed in his general direction.

*All that calling someone a "terrorist" in such matters as this does is incite angry dialogue, eventually causing the degeneration of the debate into a cursing match. It's really unnecessary in this kind of debate; in fact, even in serious geopolitical matters, it's pushing it.

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Yeah, trade secret TERRORISTS

Prognosticator 6th Apr 2006

First, the work terrorism, terrorist is a common term, you goof.
http://news.zdnet.com/2100-3513_22-5515165.html
http://www.forbes.com/forbes/1999/0517/6310055a.html

Second, it's Apples choice to determine how and when they get "leak publicity", not from intellectual property information terrorists that use THAT as a means to attract readership and profits.
Sorry, but corporations have much lose by having anything goes publishers expose information on trade secrets to competitors. Any rogue employee can sell this to web outfits like inquirer.net to further sell this.

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Contributr

Sue first, ask questions later

Jason D. O'Grady 6th Apr 2006

rhetoricpolice -

I didn't publish the Asteroid story in question to "attract readership and profits." I did it to inform consumers. Consumers have the right to make an purchase decision before they spend their hard-earned money.

Second, if Apple is loose about their information, how is that my fault?

It's disgraceful that Apple decided to sue and subpoena their customers WITHOUT investigating their own employee's computers. (That fact came out in the case) They're a computer company!

So rather than fix a problem in their own house, they should litigate independent online journalists? Hmmm... Sue your customers. That sounds a lot like the RIAA to me.

And at least the RIAA waited until business was tanking before they started suing their customers. Apple's stock was at a COMPANY HIGH when they started all this legal action.

What's their rationale? The story caused sales to slow? I don't think so... How did this hurt them? Competitors found out about it and rushed competing products to market? Uh, no.

The PowerPage has (indirectly) been a FREE support and promotional vehicle for Apple for over 10 years, providing community and building the brand. I've probably sold more Macs than most of Apple's sales staff - and for this Apple wants to shut me down?

You're way off base here. Stop being an Apple apologist, your employee badge is starting to show...

-Jason

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Are you saying...

rapson 6th Apr 2006

...that without the advance inside information you provided, people wouldn't be able to make informed decisions before purchasing?

"Consumers have the right to make an purchase decision before they spend their hard-earned money.

And the can't do that AFTER the "official" release by Apple?

Carl Rapson

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why not?

JBracy 6th Apr 2006

"It's disgraceful that Apple decided to sue and subpoena their
customers WITHOUT investigating their own employee's
computers. (That fact came out in the case) They're a computer
company!"

I'm pretty sure that Apple would have decided to follow both
courses of action, but considering the number of computers and
the amount of data to sift through I would expect that they
figured it would be faster and less disruptive to contact you first.

I don't know all of the details in the case, nor do I know how you
were contacted. But it is not beyond the realm of possibility that
their internal investigation turned up a dead end - it is pretty
simple to send an email from an @apple.com address and for
Apple to have no record of it having been sent.

It is also possible that they figured that you may be willing to
cooperate without the need for legal action.

And BTW, it doesn't matter if the leak hurt them or not. It is a
case of an NDA violation and a leak which may lead to more
information being given out that is even more sensitive.

Just my 2?

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Contributr

Apple did not investigate themselves first.

Jason D. O'Grady 6th Apr 2006

JBracy -

If you read the court documents on the EFF web site, Apple DID NOT conduct a thorough investigation before coming after me.

Want to know what they did? They questioned the 30 people on the project about the leak. (No need to investigate the whole company, just the people on the project)

Now, what do _you_ think the employees responses were when questioned? "YES! I am the source! I leaked company information!"

I don't think so...

Again if you read the documents, Apple didn't even check the 30 peoples computers or email before coming after me. That's just lazy. In fact, it's intimidation.

Is that why you spend your hard-earned money on Apple products? So that they can blow it on more attorneys to intimidate bloggers and their ISPs? Sounds more like the Sopranos, than Apple to me...

- Jason

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my bad

JBracy 6th Apr 2006

OK, so I have almost no knowledge of the case at all. But I just
want to say a few things in response to some of these
comments:
1) Apple is probably not spending ANY money on Lawyers for
this case. They have Lawyers on retainer and a legal department
who get paid no matter what they do.
2) Apple does not see you as a customer in this case, they see
you as a blogger/reporter who is spreading trade secrets
3) Personally I think you do a great job, and I love your site &
Podcast. If I had been in your shoes I would probably have
published the story as well. Having said that I would also have
complied with Apple's request for information.

Jason

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I have a question for you then

Shelendrea 6th Apr 2006

And really I am not trying to be a turd here but I would like to know this:
From what I gathered in your blog/article you got this information from a reliable source right? (Everyone with me so far?)
Now you deemed this source to be good and based on that Judgement posted what information that thye gave you for anyone who wanted to read it to see. (I hope I am correct so far because this is what I garnered from what you wrote) Now from what you have posted that I have seen thus far you said that Apple just asked the 30 people on the project if they did it and when nobody would admit it they went after you right?
Here's what I am trying to get at: Who besides the anonymous source did you get information from? What kind of research or investigative work did you do beside just post the information that this source gave you?
You just reamed Apple for failing to do further investigation before just arbitrarily suing you but if I have read everything correctly did you not fail to do tyour own good investigative work before you posted your information?

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Well I think you need to rethink your position

mrlinux 7th Apr 2006

1)if you were caught with stolen merchandise(Sony CD player), you would be question has to where you got it, they wouldnt goto Sony and try to find out how you got it.
2) I beleive in Free Speech, however with
that power comes a need for responsibility,
example it is againist the law to yell FIRE in
a movie theater.
3)And as far as the PRESS(NEWS/TV/BLoggers) comes even more responsibility to print ACCURATE information and also when not to print something because it is not ethical(legal) example a company's new product's.

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I'm not sure about this

ColdPack 11th Apr 2006

Granted, you have a lot of support from a great many muckety mucks in the "biz", but still, it's up to a journalist to make sure the information is "cool", as in "okay to print".

You said you understand if it had said "trade secret" or something, you might've felt differently (or at least you suggested that notion by saying "it didn't even say "trade secret" on the document or anything".

Do your homework and make sure that any info you put out there is, at the minimum, not going to "wake the lion". Yes, you're "reporting" for the good of the "consumers". Yeah, that's why people read your stuff.

No, it's to get the latest poop on what Apple's cookin' up, whether Steve Jobs wants you to know it or not.

Honestly, I think you've got a case, but I don't like it, all the same... this grandstanding on your part.

cp

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Did I miss something?

koryherzinger 10th Apr 2006

Maybe I missed something, but did Jason enter into an agreement with Apple regarding the protection of their trade secrets? If not, you can't call it an NDA violation. NDA means Non-Disclosure AGREEMENT and requires the consent of both parties to enter into. More than likely, if an employee of Apple is the source of the leaked info, he/she violated an NDA since most companies require their employees to sign one when they are hired.

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Informed decisions...

Mixotic 6th Apr 2006

Informed decisions are made AFTER a product is releases and
REVIEWED by several independent parties. I encourage you to be
careful how you frame your argument, as you are wrong here.

You were not providing reliable product information in your
post. You were not reviewing the product, as you had never seen
it. And you have never provided information on how you reached
the conclusion that the source was reliable. Are we just
supposed to take your word for it?

No one has phrased the the argument against you better that
Jeff Harrell. He writes:

"Companies have a right to keep certain information
confidential, and to require their employees to respect the
confidentiality of that information. The public, in other words,
does not have an inherent, unalienable right to know what goes
on inside Apple?s walls...

...journalists, despite what some people might think, are not free
to print whatever the heck they want with no limits and no
exceptions. Being a reporter does not give anybody a get-out-
of-jail-free card, and breaking the law in the pursuit of a story
can result in civil or criminal penalties. If the bloggers in this
case were trying to blow the doors open on a massive scandal or
a covered-up wrongdoing, there might be a solid argument for
excusing them from liability. But they weren?t, and that?s what
this case is about. It?s not about Apple-versus-bloggers or the
First Amendment. It?s about bloggers who choose to break the
law being held responsible, not for what they printed, but for the
actions they undertook in running down their stories."

In essence, you were distributing a trade secret, or Apple's
private intellectual property. They have a right to protect this
information, and prosecute the parties responsible distributing it
in violation a contractual agreement.

When you start reporting on shady manufaturing practices, or
how Steve Jobs eats babies to come up with Insanely Great ideas,
that's when you get to use the First Amendment to protect your
souces. The person you are protecting is an IP thief violating a
contract with their employer.

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Contributr

So Apple should sue first, investigate later?

Jason D. O'Grady 6th Apr 2006

So you're in favor of Apple coming after the press without investigating the leak internally, first?

Because that's what they did.

They briefly asked the 30 people on the project if they were the leaker (SUPRISE! none were) then the decided that they wanted to read all my email.

Sorry that's not the way it works.
Apple needs to clean up their own house before coming after the media.

It's lazy and shoddy.

Don't be an Apple apologist.

- Jason

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Do you not understand the concept of a Non-Disclosure Agreement?

Mixotic 6th Apr 2006

I don't apologize for Apple. I applaud them for taking action that
is well within their rights to protect their property. Apple spends
hundreds of millions of dollars on R&D. If they let this slide, then
what is to prevent the same employee from leaking information
that really is critical, or a "trade secret", in the future?

As for their practice, pretend for a sec that you're Apple legal,
you make the call...

Do you follow a trail the might lead to the source, or
one that you know will lead to the source? Do you go on
a wild goose chase, or follow the bread crumbs? Sure, they could
have suppeona'd every employee on the project, and each
employee's ISP, and try to get search warrants for all their home
machines in the hope of finding some shred of evidence
(something that could be easily concealed by using a public
internet terminal in a library). Or they can do what any
reasonable investigator would do and follow the trail directly
from the leak to the "faucet".

A journalist cannot hide behind the Constitution to protect
someone who is committing a crime. Violation of an NDA clearly
falls within this realm. It's a binding contract between two
individuals, in this case a person and a company.

Don't label yourself a "journalist" or a member of the "press" just
because you don't like it when the people you "report" on take
issue with your reporting practices. You do not have blanket
immunity to say whatever you want, whenever you want, and if
you think you do then you really don't understand the
Constitution, or the rights it protects. And that's really
what this is about...your lack of understanding of the nuances of
the American legal system.

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Understanding NDAs...

Zeppo9191 7th Apr 2006

...or any agreement:

The NDA was between Apple and their employees, and did not include Jason in any way, shape, or form. I seriously doubt that Jason has ever signed any NDA with Apple, nor does he know who might have done so.

Likewise, he is not legally responsible for asking his informants whether they have signed an NDA. The responsibility falls SOLELY

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Simple solution

Rick_K 7th Apr 2006

Name the person you got this information from. I'm sure that, if
you do, this would all be over with. This person is obviously in
violation of an NDA. Who's to say the information wasn't sent from.
let's say, this person's home computer? The only way to clear air is
to name this person. He/she will then be charged with industrial
espionage, after all that's what we're talking about here.

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Sorry - fingers need a diet

Zeppo9191 7th Apr 2006

As I was saying, the responsibility lies SOLELY on the person who signed the NDA to decide who should share the information (s)he possesses.

So long as Jason doesn't do anything illegal with that information (keep it to himself while investing in Apple's stock, e.g.) he is free to do with it as he feels, because HE has no NDA with Apple.

Further, I think he did the right thing by removing the information at Apple's request. When he published the information, I doubt Jason had any knowledge of how it might impact Apple, but when they voiced their concern, he complied readily.

Jason, I'm with you on this one. Apple doesn't have any business attacking you on this subject, even if only to request evidence. The investigation should be internal only. Using these tactics serves only to air their dirty laundry in public, and they should know better.

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Dead wrong

Real World 7th Apr 2006

It doesn't matter what the subject matter is. In fact, for the law to be valid, it CANNOT matter what the content of the story is. The first ammendment can't only protect Woodward and Bernstein, it HAS to protect O'Grady, Bill O'Reily and Charles Schultz too.

For Apple to be successful, they must prove that O'Grady acted with wilful intent to abet the employee in violating their NDA, if in fact one existed. Otherwise, they must demonstrate that O'Grady acted with reckless disregard, and they must SHOW DAMAGES. IMO, that is not possible.

"When you start reporting on shady manufaturing practices, or how Steve Jobs eats babies to come up with Insanely Great ideas, that's when you get to use the First Amendment to protect your souces."

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Are you saying that corporate espionage is not damaging?

Mixotic 7th Apr 2006

When Jason publishes information that he knows was received
from a source who is violating an NDA to bring him that
information, he is acting with "reckless disregard" for the legal
agreement the informant made with his employer. Apple's
actions are a clear attempt to remove an employee who may do
harm to the company through future leaks. The damage is not
related to specific product information, but to the ability of
covert employee to access information that the company has
deemed confidential.

Jason keeps making comments to the effect of "Apple should
investigate their employees before they come after me." And
stating that they haven't performed the necessary steps to
prevent this leak. Well, having employees sign NDA's is
preventative, and does qualify as due diligence. If you
tell an employee "This information is confidential, please sign
this document stating that you understand this and agree not to
release this information." then you have performed due
diligence.

As it relates to Nixon/Woodward/Bernstein/Deep Throat....teh
Watergate reporters were going after peole who had clearly
violated the law, and their source was providing them
information regarding the nature of the scandal. "Deep Throat"
was an important source for Washington Post reporters who
wrote a series of articles on the scandal that played a decisive
role in exposing the misdeeds of the Nixon administration. He
leaked information about the Watergate scandal to the
Washington Post for moral and patriotic reasons. This view has
been echoed by a large number of commentators and historians
familiar with the details of the Watergate history who feel that
his contributions were vital in exposing the illegal actions and
cover-ups of the Nixon White House.

This is obviously a much different scenario than that the
predicament Jason has gotten himself into.

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You're a bozo

ajole 7th Apr 2006

That's a clown, you know.
And someone needs to police your rhetoric, ya bozo.
All he did was print what someone told him. Journalists have been doing that for years, and it has always been OK. He didn't pay for it, he didn't ask for it, he was told voluntarily by someone else. Is he supposed to check every person he talks to, to see if they may have signed some confidentiality agreement sometime in the last ten years? And by the way, Apple can't possibly prove they lost any revenue from this, so they need to shut up too. Trade secret my Butt, it wasn't as if anyone was going to take the info and creat a competing device in the few weeks left before the offical unveiling. If it was such a secret, then no one could even have known if it were true! It was just a rumor!
Besides, they should be after the employee, not the journalist. And thanks to the document that allows you to call someone a terrorist without fear of being sent to jail, a journalist does not have to divulge his sources, especially when they are correct. What do you want, every whistle blower in the place to be shot? After all, a whistle blower who tells the gov't about a drug trial his employer faked is going to cost his company millions, so by your logic, he's the terrorist?

Keep the word terrorism for the terrorists ya bozo, or I hope the people who lost their family members to real terrorists come and kick your @ss!

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