Apple vs. Me

Apple vs. Me

Summary: 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...

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TOPICS: Legal
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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

Topic: Legal

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190 comments
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  • *yawn*

    Oh god, not the old [i]>"We bloggers are journalists too, so we
    can post whatever rumor we hear without fact-checking and are
    still protected by the constitution"[/i]-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 [i]might[/i] 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.
    Jens T.
    • Not simply about bloggers...

      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...).
      Third of Five
      • other companies ...

        JohnRoche wrote: [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...).[/i]

        Probably not, since there hardly[i] are[/i] 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 [b]
        wrong[/b] 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. [b]This seriously affects Apples
        business![/b] It's not about stealing Jobs the show, it's about
        (sorry for being melodramatic) the welfare of the company.
        Jens T.
        • You are dead wrong

          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.
          ShadeTree
        • High Pitched Media Frenzy...

          [b]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.[/b]

          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 [i]3rd party's[/i] business if you were to choose to wait until Apple released their product.
          Wolfie2K3
        • Seriously Folks......

          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.
          Cayble
    • not about you

      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.
      JBracy
    • A small rewrite of your post

      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.
      Letophoro
      • More than scale

        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
        rapson
        • A different perspective

          "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?
          Letophoro
        • True to a point....

          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.
          viking2007@...
      • Uhm ...

        Letophoro, you have lost me:

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

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

        If you [i]really[/i] 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. [b]
        But this is just gossip. It's a frigging Firewire device!!![/b] And
        Jason O'Grady isn't Bob Woodward, even if he'd like to see
        himself up there ...
        Jens T.
        • Re: Uhm...

          "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 [u]ability[/u] 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.
          Letophoro
          • Actually, you're wrong...

            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.
            Mixotic
          • The US Supreme court says I'm right.

            Here's a [url=http://en.wikipedia.org/wiki/Privacy]link[/url] 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.
            Letophoro
          • Public interest does not equal public concern...

            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
            <b>"...as long as that information is of public concern."</b>

            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
            <i>did not</i> 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.
            Mixotic
        • Americans not bound by "international law"

          "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.
          Techboy_z
        • blech...

          "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.
          drsparks@...
    • You missed the real issue...

      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.
      No_Ax_to_Grind
      • yup..

        [i]"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."[/i]

        Sounds very Microsofty of him.. ;-)
        Spicoli's Avenger