EFF stands up for online journalists' rights in Apple v. Does

EFF stands up for online journalists' rights in Apple v. Does

Summary: Case has broad implications for journalists and confidentiality of sources...

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TOPICS: Apple
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The Electronic Frontier Foundation (EFF) told a San Jose, California appeals court Thursday that denying protections for confidential sources would deliver a dangerous blow to online journalism and independent media.

Apple Computer is suing several unnamed individuals, called "Does," who allegedly leaked information about an upcoming product to online news sites PowerPage and AppleInsider.  As part of its investigation, Apple subpoenaed Nfox -- my email service provider -- for communications and unpublished materials obtained by me. A trial court upheld the subpoena.

In arguments before the 6th Appellate District of the California Court of Appeal, EFF Staff Attorney Kurt Opsahl told a panel of three judges that a subpoena to Nfox violated the federal Stored Communications Act, which requires direct subpoenas of account holders. Opsahl also argued that myself and other online journalists are entitled to protect their confidential source information under both the California constitution and the U.S. Constitution.

In addition to the parties in the case, attorneys for conservative blogging group The Bear Flag League and Intel Corp. spoke to the court, with Intel arguing in support of Apple. EFF worked with co-counsel Thomas Moore III and Richard Wiebe in this case.  A ruling should be announced within 90 days.

More on Apple v. Does is available on the EFF Web site.

Topic: Apple

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  • What Is a Trade Secret?

    Like the majority of states, California has adopted a version of
    the Uniform Trade Secrets Act
    (UTSA). Enacted in 1984, the UTSA is codified under Section
    3426 to 3426.11 of the
    California Civil Code.
    Statutory Definition
    The version of the UTSA adopted by California defines a ?trade
    secret? as follows:
    ?Trade secret? means information, including a formula, pattern,
    compilation, program,
    device, method, technique, or process, that:
    (1) Derives independent economic value, actual or potential,
    from not being generally
    known to the public or to other persons who can obtain
    economic value from its
    disclosure or use; and
    (2) Is the subject of efforts that are reasonable under the
    circumstances to maintain its
    secrecy.
    Four Basic Elements
    Each of four elements must be present in a ?trade secret?:
    ? A ?trade secret? must consist of information. The types of
    information that have been
    protected by trade secret law are virtually without limit. The
    most common examples fall
    under two categories: technical information and business
    information. In the next section,
    you will see some examples.
    ? The information must derive economic value (actual or
    potential) from the fact that it is
    secret. In other words it must have some value flowing from the
    fact that it is not known,
    and therefore cannot be put to use, by others. This value is
    independent of any intrinsic
    value that the information might have. To look at this element in
    still another way,
    information has the requisite independent economic value if a
    potential competitor or
    other interested person would have to expend time and money
    to find or develop it.
    ? The information cannot be generally known (either by the
    public, or, more importantly, by
    other persons in the industry). To be a trade secret, the
    information must not be generally
    known to the public, industry competitors, or others who could
    realize economic value
    from its disclosure or use. Knowledge of the information in
    question by even a very small
    number of outsiders (say, one key person) can deny or destroy
    trade secret status. As the
    Comments to the UTSA state, ?[i]f the principal person who can
    obtain economic benefit
    from information is aware of it, there is no trade secret.? Keep in
    mind, however, that
    unique combinations of generally known concepts can be a trade
    secret.
    ? The information must be treated as a secret, and be the
    subject of reasonable efforts
    to maintain its secrecy. For information to acquire and maintain
    trade secret status, its
    owner must exercise reasonable efforts to maintain its secrecy.
    The owner?s mere desire
    or intent to keep information a secret is not enough.
    But what efforts are considered ?reasonable?? The comments to
    the UTSA state, ?[t]he
    courts do not require that extreme and unduly expensive
    procedures be taken to protect
    trade secrets against flagrant Industrial espionage.?
    A California federal court has defined ?reasonable efforts? to
    include ?advising employees of
    the existence of a trade secret, limiting access to the
    information on a ?need to know basis,?
    requiring employees to sign confidentiality agreements, and
    keeping secret documents
    under lock.? Requiring employees, contractors, visitors and other
    people who may come into
    contact with trade secret information to sign confidentiality or
    non-disclosure agreements
    help to ensure that the information retains its trade secret
    status, because such agreements
    impose on their signers a contractual duty not to disclose the
    information.
    Mixotic
  • Examples of Trade Secrets

    Trade secrets largely fall into two broad categories: technical
    information and business
    information. The lists below are not intended to be exhaustive or
    exclusive. Keep in mind
    that technical or business information falling under one of the
    classes listed below must still
    satisfy the other elements of a trade secret in order to meet the
    legal definition.
    Technical Information
    Trade secrets in this category may include:
    ? Plans, designs and patterns, such as those for specialized
    equipment
    ? Processes and formulas, such as those for the manufacture of
    drugs, foods, chemicals or
    other materials (e.g., the formula for Coca-Cola)
    ? Methods and techniques for manufacturing
    ? Engineering notebooks
    ? Negative information, e.g., the designs that didn?t work (the
    UTSA definition of a trade
    secret ?includes information that has commercial value from a
    negative viewpoint,
    for example the results of lengthy and expensive research which
    proves that a certain
    process will not work could be of great value to a competitor?)
    ? Computer software (programs or source code)
    Business Information
    Trade secrets in this category may include:
    ? Financial information prior to public release
    ? Cost and pricing information
    ? Manufacturing information
    ? nternal market analyses or forecasts
    ? Customer lists
    ? Unannounced business relationships one is negotiating or has
    entered into
    ? Information about business opportunities, such as
    opportunities to acquire another
    company or product
    ? Marketing and advertising plans, both for existing and planned
    products
    ? Personnel information (e.g., who the key employees are, what
    are the compensation plans
    for key employees, who would be a good target to hire away
    because of his or her special
    knowledge, experience, receptivity to solicitation, and the like)
    Mixotic
  • What Is Misappropriation?

    Misappropriation does not need to be a deliberate act; it can
    occur through negligence or
    even mistake. ?Misappropriation? is a statutory term that defines
    what one may not do with
    trade secrets one does not own. Section 3426.1(b) of the UTSA
    reads:
    ?Misappropriation? means:
    (1) Acquisition of a trade secret of another by a person who
    knows or has reason to know
    that the trade secret was acquired by improper means; or
    (2) Disclosure or use of a trade secret of another without
    express or implied consent by a
    person who:
    (A) Used improper means to acquire knowledge of the trade
    secret; or
    (B) At the time of disclosure or use, knew or had reason to know
    that his or her
    knowledge of the trade secret was:
    (i) Derived from or through a person who had utilized improper
    means to acquire
    it;
    (ii) Acquired under circumstances giving rise to a duty to
    maintain its secrecy or
    limit its use; or
    (iii) Derived from or through a person who owed a duty to the
    person seeking
    relief to maintain its secrecy or limit its use; or
    (C) Before a material change of his or her position, knew or had
    reason to know that
    it was a trade secret and that knowledge of it had been acquired
    by accident or
    mistake.
    This definition of misappropriation can be broken down into
    three types of prohibited
    conduct: (1) wrongful acquisition, (2) wrongful use, and (3)
    wrongful disclosure of someone
    else?s trade secret. Each of these is discussed separately below.
    However, a common thread
    tying all of these concepts together is ?improper means.?
    The UTSA expressly defines ?improper means? to include ?theft,
    bribery, misrepresentation,
    breach or inducement of a breach of a duty to maintain secrecy,
    or espionage through
    electronic or other means.? The Comments to section 3426.1
    provide a broader example:
    ?Improper means could include otherwise lawful conduct which
    is improper under the
    circumstances; e.g., an airplane overflight used as aerial
    reconnaissance to determine the
    competitor?s plant layout during construction of the plant.?
    Using authorized access to a
    network or computer system to obtain unauthorized access to
    information on the network or
    in the system would also be an example of ?improper means.?
    Importantly, the plain language of the statute and the Comments
    emphasize that both
    reverse engineering and independent development are not
    misappropriation. The Committee
    notes define reverse engineering as ?starting with the known
    product and working backward
    to find the method by which it was developed. The acquisition of
    the known product must of
    course, also be by a fair and honest means, such as purchase of
    the item on the open
    market for reverse engineering to be lawful.? Additionally, the
    Comments provide that
    discovery of the trade secrets under license by the owner,
    observation of the purported trade
    secret in public use, or obtaining it from published literature are
    ?proper means? and
    therefore not misappropriation.
    Mixotic
  • Wrongful Acquisition/Use/Disclosure

    Wrongful Acquisition
    Misappropriation by wrongful acquisition occurs when all of the
    following conditions are met:
    ? The acquisition of a trade secret of another;
    ? By a person who knows or has reason to know; and
    ? That the trade secret was acquired by improper means.
    A person who obtains by subterfuge or outright taking any
    information he has reason to
    know is confidential, is guilty of misappropriation. If a person
    obtains information directly or
    indirectly from someone who does not have authority to
    disseminate it, that person may be
    liable for misappropriation by wrongful acquisition.
    Here are some examples of misappropriation by wrongful
    acquisition:
    ? Copying and removing trade secret documents from their
    storage location.
    ? Obtaining trade secret information from the trade secret
    owner?s employee, if that
    employee had an obligation to maintain the information in
    confidence.
    ? Improper surveillance.
    Similarly, the employer of an employee who wrongfully acquires
    and uses a trade secret on
    the job (e.g., by bringing it from his or her old job) is liable to
    the trade secret owner for
    misappropriation and may also be subject to criminal penalties.
    See the discussion below.
    Breaching or inducing another person to breach a duty to
    maintain confidentiality is another
    common problem. One who obtains confidential information,
    but knows or has reason to
    know that the source is under an obligation not to disclose such
    information, can be liable
    for misappropriation. The fact that a person under such an
    obligation willingly or
    accidentally disclosed the information does not protect the
    recipient.
    Lawful acquisition of another?s trade secrets, without more, is
    not actionable. The trade
    secret owner must show the defendant used ?improper
    means? (discussed above) to acquire
    the information in order to show liability for this type of
    misappropriation.
    Wrongful Use
    Misappropriation by wrongful use occurs where:
    (1) One uses the trade secret of another person;
    (2) Without the express or implied consent of the owner of the
    trade secret; and at least
    one of the following is true:
    (a) The trade secret was obtained by improper means (for
    example, you stole the
    information or employed other improper means to get it such as
    implanting and
    using a ?backdoor? or ?hook? in a computer program, system or
    network); or
    (b) The trade secret was obtained from another person who used
    improper means to
    obtain it (for example, at the time of use, you knew or had
    reason to know that you
    got the information from or through a person who stole it, or
    used other improper
    means to obtain it); or
    (c) The trade secret was obtained from a person who had an
    obligation not to
    disclose it (for example, at the time of use, you knew or had
    reason to know that
    you got the information from a person who was under an
    obligation?whether by a
    nondisclosure agreement or otherwise?not to disclose it to you);
    or
    (d) You obtained the trade secret under an agreement or
    obligation not to use it in
    the way you are using it (for example, at the time of use, you
    knew or had reason
    to know that you learned of the trade secret pursuant to a
    nondisclosure or other
    similar agreement that prohibits the use you are making of the
    information); or
    (e) You obtained the trade secret knowing it was disclosed by
    accident (for example,
    at the time of your use, but before a material change in your
    position, you knew
    or had reason to know that the information was dis closed to
    you by accident
    or mistake, such as by sending it to the wrong address, fax
    number or email
    account).
    To prove misappropriation by wrongful use, a trade secret owner
    does not need to establish
    that the alleged misappropriator?s product is an element-for-
    element copy of the owner?s
    trade secret product or process. Proof of wrongful use is often
    made upon a finding of
    substantial similarity between the products or processes, or by
    inference. Example: at the
    end of its first month in business, Company A has only one
    customer that had not previously
    been a preferred customer of the trade secret owner, Company
    B. From this evidence, a court
    could infer that Company A did not acquire the names of B?s
    customers through its own
    labor or public sources but rather, used Company B?s trade
    secret customer list.
    Wrongful Disclosure
    The analysis of misappropriation by wrongful disclosure is
    virtually the same as that for
    wrongful use. Misappropriation by wrongful disclosure occurs
    when:
    (1) One discloses the trade secret of another person to someone
    else;
    (2) Without the express or implied consent of the owner of the
    trade secret; and at least
    one of the following is true:
    (a) The trade secret was obtained by improper means (for
    example, you stole the
    information or employed other improper means to get it); or
    (b) The trade secret was obtained from another person who used
    improper means to
    obtain it (for example, at the time you disclosed the information,
    you knew or had
    reason to know that you got the information from or through a
    person who stole
    it, or used other improper means to obtain it); or
    (c) The trade secret was obtained from a person who had an
    obligation not to
    disclose it (for example, at the time you disclosed the
    information, you knew or
    had reason to know that you got the information from a person
    who was under an
    obligation?whether by non-disclosure agreement or otherwise?
    not to disclose it
    to you); or
    (d) You obtained the trade secret under an agreement or
    obligation not to use it in the
    way you are using it (for example, at the time you disclosed the
    information, you
    knew or had reason to know that you obtained the secret
    information pursuant to
    a non-disclosure or other similar agreement that prohibits the
    use you are making
    of the information); or
    (e) You obtained the trade secret knowing it was disclosed by
    accident (for example,
    at the time you disclosed the information, but before a material
    change in your
    position, you knew or had reason to know that the information
    was disclosed to
    you by accident or mistake, such as by sending it to the wrong
    address, fax number
    or email account).
    Wrongful disclosure may be either intentional or inadvertent; the
    UTSA does not require
    ?intent? to impose civil liability. A common example of
    misappropriation by wrongful
    disclosure occurs when a trade secret owner?s employee has an
    interview with (or is actually
    employed by) a new employer, and discusses the former
    employer?s trade secret
    information. Such an employee may be liable for
    misappropriation by wrongful disclosure,
    and the new employer may also be liable for misappropriation by
    wrongful
    acquisition and/or use.
    Mixotic
  • You sir.

    Are a sniveling loser. Why not just stick to that which you know
    best? As you're not a true journalist, you should be required to turn
    over the documents.
    Rick_K
    • *SIGH*

      Sorry you feel that way, Rick_K.

      You sound like either a reporter who thinks reporting puts you in an exclusive club; or some country bumpkin who never learned what journalism was in the first place.

      A journalist is a writer for newspapers and magazines. Doesn't say whether it's electronic or paper. Doesn't say how many articles, sections, pages, or departments it has. Doesn't say you have to be a news reporter.

      Benjamin Franklin was considered both a journalist and a publisher. Articles, such as this one, are on par with any of Franklin's articles written under any one of his numerous nom de plumes.

      Like it or not, if you write for public consumption, you are a journalist.
      Dr_Zinj
  • Ever hear of the NuPrometheus League?

    They used to be Apple employees who leaked source code that draws graphics for Macs. Apple must still be hurting from that based on their agressive campaign against "Does."

    It's strange to me that Apple doesn't have any clone lines like the PCs. Ever since IBM allowed the original PC to be cloned, the Intel-based PCs have been the market dominator, and those have become the Windows PCs we deal with. If Apple's computers are as good as their fanbois say, why don't they allow them to be cloned? Are they so M$-level greedy that they only want the market for themselves? If they had allowed cloning we wouldn't be dealing with the buggy IE and half-assed "patches" of M$. Allowing clones didn't hurt IBM, though the PS/2 nearly killed them.
    Mr. Roboto
  • tough problem for all involved

    The information published was an Apple trade secret, with pictures circles and arrows. That is definitely blatently illegal. The problem occurs when trying to restrict freedoms of the press. Apple is going to lose on this one. It is the employee who needs to be found and fired, but they can't force a blogger to reveal that.

    Re Apples being cloned v IBMs being cloned, the IBM pc was not cloned willingly. It was done via a well known back-engineering technique by lawyers and engineers where one party copying the product was intentionally firewalled from the other party building the product. IBM could do nothing about it.

    Who would want to clone an Apple anyway? It is just an intel mainboard, hard drive, cpu, and software, just like a Dell. The differentiator is the design, which can be patented in a limited way. There is nothing except money stopping anyone who wants to to build better-than-Apple products. It is not that hard, given the money.
    WinnebagoBoy