Submitted by The Electronic Frontier Foundation last week won the right to unseal court documents related to Apple’s efforts to subpoena the sources of online journalists. The documents, previously sealed by the Court and unavailable to the journalists and their attorneys, show that Apple moved to subpoena the reporters’ sources before conducting a thorough investigation within the company.
So that nobody starts this thread on the wrong premise… Apple did NOT sue the news sources as is frequently reiterated on news sites around the web… They simply subpoenaed them.
This was done after Think secret published information that was given to them by individuals that did not have the right to distribute it. It is entirely legal for Think Secret to publish the information but it was not legal for the distributor of that information to give it to them.
The judge demanded that Think Secret divulge its sources to which they refused. They have the opportunity, (like any “journalist” who wants to protect its sources) to go to jail and not divulge, but that is something that they choose to do… not something that is inflicted upon this in this case.
Yes, Apple did not go through the proper channels to find out who the distributor of this information was before contacting Think Secret. Because they did not, Think Secret may not have to chose between a fate of divulging their source or going to jail to protect them.
Regardless, so many people have misinterpreted this case as Apple suing think secret… which is not the case. With that said, go ahead and state your opinions about this case with these facts in mind.
Pretty bizarre world you live in, where not going to jail is considered an “opportunity.” Apple’s actions are clearly violations of First Amendment protections of free press, and Think Secret having to face either jail time or revealing sources when they did nothing illegal is condoning Apple’s (and activist corporate judges) attempt to silence other journalists.
>”Apple’s actions are clearly violations of First Amendment protections of free press”
First ammendment is freedom of speech, not freedom of the press. Regardless, free speech issues and freedom of the press doesn’t apply in this instance because the information being discloosed was distributed illegally. Again, Think Secret isn’t being sued, but they should be required to divulge their sources because the information was provided to them under false pretences.
The only thing Apple did wrong here is not follow proceedure. It’s possible (though unlikely) that it will change the course of action with regard to Think Secret having to divulge their sources.
“Think Secret having to face either jail time or revealing sources when they did nothing illegal is condoning Apple’s (and activist corporate judges) attempt to silence other journalists.”
Huh? How is Apple trying to silence journalists? They simply want to stop people from breaking their non disclosure contracts and thus reveal their trade secrets.
From http://www.billofrights.org/
Amendment I
“Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.”
If people know that any journalist they speak to can be compelled to reveal their sources, people will stop talking to journalists. If journalists know that they can be jailed for legal activities, they will stop printing.
The particular case was never about protecting trade secrets (which do _not_ supercede Constitutional rights); it was all about controlling media reports and intimidation. Additionally, NDAs are civil matters, not criminal, and have even less standing. No criminal activity occured by the source speaking with Think Secret. That the court sided with Apple is appalling and a true case of an “activist judge” wanting to eliminate the Constitutional protections of citizens.
If people know that any journalist they speak to can be compelled to reveal their sources, people will stop talking to journalists. If journalists know that they can be jailed for legal activities, they will stop printing.
Exactly. Even though I work here on a voluntary basis, this still scares the pajeezers out of me. I’m glad I;m living in a less Sue-happy country.
As far as I’m concerned, no company can force me to disclose *any* information, names or other things.
Huh? How is Apple trying to silence journalists? They simply want to stop people from breaking their non disclosure contracts and thus reveal their trade secrets.
Yes, but what does ThinkSecret have to do with this? In case you don’t know, everyone has the right to remain silent. So, ThinkSecret doesn’t have to disclose anything. What law states that ThinkSecret should?
Apple should go after the people it has signed NDAs with; they are the ones at fault. ThinkSecret did nothing more than publish that information, as did many other websites. The fact that ThinkSecret knows the names changes nothing.
I know quite some interesting information too about various matters, being the managing editor and all. Yet, no one can force me to disclose anything. There is no law that I know of that can force me, or any other site, to disclose information. The leaking devs signed an NDA; *not* ThinkSecret.
And *of course* Apple is trying to silence journalists here– what else is the purpose of this? If Apple wins all this, than ThinkSecret will be unable to publish the news it hears from people without mentioning their names. Obviously, then people will top submitting news to ThinkSecret.
This is a bad move by Apple. I hope I one of these days get a letter from them too. Until they realize I do not fall under US law.
The judge demanded that Think Secret divulge its sources to which they refused. They have the opportunity, (like any “journalist” who wants to protect its sources) to go to jail and not divulge, but that is something that they choose to do… not something that is inflicted upon this in this case.
In USA there is a law that protects journalists from revealing their sources. It wasn’t their “opportunity” or anything and what Apple did was what Anon said “violations of First Amendment protections of free press”.
Sure it is “legal” what they did, but then again, Microsoft to this day has never sued any fan for exposing future products, screenshots, beta builds etc… They’ve never even sued anyone over patent infringement. The best I know was asking Turrott to remove the Longhorn HEC build screenshots and sites like Neowin, Bink and even OS News regularly post leaked screenshots and leaked information on future products on MS software. Ask Eugenia how many legal threats she received.
It doesn’t even matter if it’s completely legal or moral. You just have to let some things alone, otherwise you will get a bad impression by your fans. For fucks sake, they posted about a future product 1 day before the actual press revealing. I ask you how many damage did they do to them? Enough to put a bad taste on your fans?
There is no law protecting journalists.
Journalists use the first amendment for their basis for not divulging that info.
However the fact remains there is absolutely no law that states anything along the lines of “journalists are protected from divulging names in the same fashion as doctors and lawyers”
I have no opinion on the matter and if a journalist is willing to go to jail over it, more power to them.
Doctors and lawyers and some other professions have legal protection where they do not have to give out the info accept under very rare circumstances.
“There is no law protecting journalists.”
That depends on whether something in the Constitution is a law or not. Since the First Amendment does protect free press, and clearly threatening to imprison journalists for not revealing their sources attacks free press through intimidation, protection of journalists is fundamental to this country. Activist judges like the kind ruling in favor of corporations over journalists are unAmerican and the real danger to this country.
In fact, the right to privacy only infers patient-doctor confidentiality, while freedom of press is explicit.
“Since the First Amendment does protect free press, and clearly threatening to imprison journalists for not revealing their sources attacks free press through intimidation”
You’re neglecting the fact that the source in question broke the law. If they had not broken the law, then Apple could not (and most likely would not) require that they divulge their sources.
“protection of journalists is fundamental to this country”
Yes… assuming the journalist’s source didn’t break the law in providing him or her that information.
“Activist judges like the kind ruling in favor of corporations over journalists are unAmerican and the real danger to this country. “
This has nothing to do with judges favoring business over journalists. In equating it as such, you’re neglecting the fact that laws were broken to give think secret that information they published. Now if Apple simply didn’t like the information that they were publishing and they gave them trouble in an effort to silence them, that would be a whole ‘nother issues altogether, but you’re trying to equate that scenario to the existing one which is totally different.
You’re equating contracts with laws, and a contract with a company is not a government law. The source broke contract, not law, and even then a contract that prevents the free expression of speech (talking to a journalist) is a violation of the source’s civil rights. The rights of the individual _must_ override the claims of corporations, or contracts with companies will become laws of government.
oops, replied to the wrong one. That should have been in reply to kellym.
You’re equating contracts with laws, and a contract with a company is not a government law. The source broke contract, not law, and even then a contract that prevents the free expression of speech (talking to a journalist) is a violation of the source’s civil rights. The rights of the individual _must_ override the claims of corporations, or contracts with companies will become laws of government.
Absolute nonsense. If you feel that a contract prevents your freedom of speech and violates your civil rights, don’t sign it!. Agreeing to the contract, and then breaching it claiming that it violates your right is the most absurd thing I’ve ever heard.
Absolute nonsense. If you feel that a contract prevents your freedom of speech and violates your civil rights, don’t sign it!. Agreeing to the contract, and then breaching it claiming that it violates your right is the most absurd thing I’ve ever heard.
Now that I agree with
.
Okay find me the law that says journalists have protection.
The law or court case interpretation of the first amendment, here is a hint, it doesnt exist.
Journalists see the first amendment as protecting them…the courts however do not.
I suggest you actually read the First Ammendment before you talk about Free Press protections. It explicitly limits the federal government, not anybody else. (The entire Constitution & Bill of Rights was written that way.)
Freedom to speak does not imply no consequences for the content of that speach. The source’s speach regarding priveleged information brought about the consequence of Apple “crying foul”, and pursuing remedy. This is fair, for the same ethical reason that “insider trading” is unfair.
The relevant legal/constitutional point here is in the US Constitution, Article I, Section 10 “No State shall… pass any … Law impairing the Obligation of Contracts”. Commonly referred to as the Right of Contract.
And the source violated a contract, according to Apple. If you want to argue, argue what obligation the government has to assist Apple in enforcement of a contract.
While the Bill of Rights may be with respect to the federal government, no state may abridge a citizen’s rights that are protected at the federal level.
It should also be noted that sites with standing legal departments that also published the same information have not been subpoened.
“And the source violated a contract, according to Apple. If you want to argue, argue what obligation the government has to assist Apple in enforcement of a contract.”
That has been part of my argument from the start. I have consistently refered to the judge in this matter as an “activist judge.” Think Secret did not violate a contract and they received their legally. It is no one’s responsibility to ensure that the person speaking to them can do so legally.
Again, this is a civil matter but criminal penalties (imprisonment) are being applied, which is directly against the writers of the Constitution wishes. People being imprisoned for civil issues such as debt was clearly at the forefront of the thinking.
In the good old days there was a saying:
In Soviet Union there is freedom of speech. But there is no freedom AFTER speech.
Maybe something like this is happening right now in this case…
“In case you don’t know, everyone has the right to remain silent”
Not so; what you have is the right not to incriminate yourself in a criminal trial: “…nor shall be compelled in any criminal case to be a witness against himself…”
A court *can* compel you to produce evidence against someone else if you’ve got it — or against yourself in a civil case — and this is totally routine. Refusing a court order to turn over evidence without a very good excuse can lead to contempt of court charges. (Except in SCO v IBM, where it leads to more and more delay while the judge lets you run another fishing expedition against the other guy.
Think Secret has knowledge about a breech of contract which is relevant to the investigation of that breech. (If you knew one your thousands of employees was violating their secrecy contract, and you knew exactly who they’d been talking to, it makes a lot of sense to start your investigation there!) It’s a) a civil dispute, not a criminal case, and b) they’re not the defendent.
As to whether special protections for journalists do or don’t or should or shouldn’t apply, well that’s another matter.
</IANAL>
Wonderful response…
you summarized exactly what I was going to say to Thom an anonymous.
A court *can* compel you to produce evidence against someone else if you’ve got it — or against yourself in a civil case
Exactly– a *court* can. Not a company. Please remember that I am not living in the US; in my country a court will never take sides with a company, because Dutch law is quite different than from the US ones.
People here keep on forgetting that the US juridical system is quite different than that from the European ones. I strongly suggest the ThinkSecret guys to consider moving to Europe– it will make them virtually immune for Apple’s silencing measures.
“Exactly– a *court* can. Not a company. Please remember that I am not living in the US; in my country a court will never take sides with a company, because Dutch law is quite different than from the US ones. ”
http://news.yahoo.com/s/ap/20050913/ap_on_re_eu/netherlands_child_f…
Umm, I think I’ll stay were I am.
http://news.yahoo.com/s/ap/20050913/ap_on_re_eu/netherlands_child_f…..
Umm, I think I’ll stay were I am.
You do know what this is about don’t you? This is creating a medical file of any troubles a kid might have, ie. police contact, contact with institutions and such, so that child care and support can centrally access all information on problem children– now the institutions often work around eachother.
This has absolutely nothing to do with companies. There isn’t even a company involved! Please don’t talk about things you don’t understand.
Exactly– a *court* can. Not a company. Please remember that I am not living in the US; in my country a court will never take sides with a company, because Dutch law is quite different than from the US ones.
And Apple didn’t go through the court?
You need to remember that Apple isn’t trying to silence ThinkSecret. They are trying to catch the people who leaked information, and ThinkSecret knows who they are. The subpoena is to get ThinkSecret to disclose information about who these sources are, i.e. the people who have violated the NDA that they agreed to with Apple.
This isn’t the case of a whistle blower who leaks information about a potentially dangerous toxic waste dump, or an arms deal between a leading politician and some terrorists. If it were, this would be a case of public interest and ThinkSecret would be in the right.
Instead, this is a case where the leak had nothing to do with public interest, rather an interested public. Journalists should be held accountable for the stuff they publish, and if their sources broke the law, journalists need to comply with the authorities.
This isn’t the case of a whistle blower who leaks information about a potentially dangerous toxic waste dump, or an arms deal between a leading politician and some terrorists. If it were, this would be a case of public interest and ThinkSecret would be in the right.
I agree that this isnt information of extreme public interest– it would be silly to claim otherwise. However, where do you draw the line? Who decides what is “information for public interest” and what isn’t? Will the same apply to docter/patient confidentiality?
These lines are very blurry, and as far I’m concerned, no riscs can be taken. Journalists (and docters) should be protected by law at all costs. Free press is the most important thing we have in this world, and no government or judge should be able to fiddle with the very basis of the press– which source anonimity is part of.
I agree that this isnt information of extreme public interest– it would be silly to claim otherwise. However, where do you draw the line? Who decides what is “information for public interest” and what isn’t? Will the same apply to docter/patient confidentiality?
A doctor/patient confidentiality is there for a reason. To allow the doctor to do their jobs. If compromised, patients will be hesitant to disclose relevant information to their doctors, impeding the diagnosis. Lives will be endangered. To try and equate the subpoena issued to ThinkSecret as somehow equal (or even vaguely approaching) the same seriousness as the doctor/patient analogy, is seriously missing the point.One of them is there to save lives. The other is just … well, for entertainment.
There are of course valid whistle blowers that do save lives, or work towards the better good of all mankind (sorry for being melodramatic but you get the picture). There are laws in place to ensure that such journalists/sources will not be jeopardized. This is clearly not the case with Think Secret.
There are of course valid whistle blowers that do save lives, or work towards the better good of all mankind (sorry for being melodramatic but you get the picture). There are laws in place to ensure that such journalists/sources will not be jeopardized. This is clearly not the case with Think Secret.
Again I’ll restate my point– who draws the line?
Uhm…. the judge?
I see what you’re trying to do. But I disagree with your solution. Just because you feel that it is going to be hard to draw a line, there should be no line.
I agree that there are going to be cases where the line is difficult to draw. In those cases, it will be up to the judge to draw the line. That is why we have judges. Sure, you may not agree with the judgement they produce, but they are there for a reason.
That said, this is not the case with Think Secret. You cannot seriously argue that the leak was done for the ‘greater good’.
“That said, this is not the case with Think Secret. You cannot seriously argue that the leak was done for the ‘greater good’.”
That’s not what Think Secret has to prove. What Apple has to prove is that they have suffered material damage as a result. They have not shown this, nor have they even attempted to do so.
Freedom of the press protects the dissemination of thoughts, ideas, expressions and opinions, but it does not shield journalists from accountability. A press without accountability is anarchy, not democracy.
The Supreme Court has already ruled that the First Ammedment does not protect journalists from subpoena.
Apple’s marketing expenditures appearently leave little room in the budget for intelligent PR, so tactics like this are neither new nor surprising. But stunningly poor judgement aside, their only “wrong” here was not using the court as an avenue of last resort. The subpoena should have been the last step, not the first, and in doing so they were clearly being abusive.
But still, at the end of the day, whether you like Apple or not, why shouldn’t they be allowed to enforce NDA’s or protect trade secrets? To me, it seems like an abuse of the First Ammendment rights to claim otherwise.
If you don’t agree with their tactics, just do what so many of us in the free world do when word leaks of a new Apple product: refrain from giving a damn. Easy.