Why newspapers aren’t hiring Think Secret’s editor, but are backing him (and others)
In News Sites support Rumo[u]r Sites in Apple Case, John Gruber comments:
California newspaper publishers have filed a court brief supporting PowerPage’s and Apple Insider’s appeal. If they think this “reporting” is so great, and so worthy of protection, why don’t they hire Jason O’Grady, Kasper Jade, and Nick Ciarelli?
Simple, John - because they don’t want to hire them (just yet, who knows) but think that there’s a principle worth defending there, relating to journalism, and which sets an important precedent.
Look, what if there were a blogger - or someone running a gossip site - who effectively relayed some piece of whistleblowing, such as that a new product used something which internal tests had shown to be dangerous? That’s happened, after all, in drugs companies - except you didn’t get the whistleblowing. Or what if the employee relayed something about the new drug, and someone *else*, with specialist knowledge outside, put the pieces together about the risk?
Instead, what happens? The drugs company sues the hell out of the site under the Californian “trade secrets” law. And if the Apple case sets a precedent, then the site loses, big time. In fact, if the Apple case does set a precedent, it has a chilling effect on all sorts of sites, and potential whistleblowers, which means that the public interest - as well as the interest of the public - are not served.
One suspects that Apple finds itself in an uncomfortable place here. Here’s my guess at what happened: the lawyers were told to find a way to make the sites sorry. So they look around, and discover there’s the trade secret law they can employ. Great! Scare the little sites! Except that it escalates, because the sites have attracted attention by getting info that’s right.
So they think the reporting, as a concept, is worthy of protection. As for hiring those guys - ach, they’re still young. Who knows if they want a grinding job on a paper? Blogging can be more fun :-)
Endnote: the Columbia Journalism Review daily notes (here) that the newspaper publishers comment in their amicus brief:
Punishing journalists who did not illegally obtain access to trade secrets for publishing information on a matter of public interest would impair the news media’s ability to report on the activities of corporations and other businesses. The result will be a restriction in the flow of information to the public, inhibiting the public’s ability to make informed choices related to government, industry, health and a host of other subjects that affect people’s everyday lives.
I think that’s pretty much the same as I said, but longer. And yes, I note that the judge in his original finding that the case wasn’t protected by the US First Amendment commented that that company employees who leak trade secrets are distinct from “the whistleblower who discloses a health, safety or welfare hazard affecting all, or the government employee who reveals mismanagement or worse by our public officials, (the enthusiast sites) are doing nothing more than feeding the public’s insatiable desire for information.” But the principle remains.
- These posts might be related (the database thinks..):
- Journalism or "churnalism"? Nick Davies of the Gdn weighs in.. (31 January 2008; score: 38.59%)
- Newspapers' resistance to change 'borders on pathological' (17 March 2005; score: 35.19%)
- What newspapers need: an obligatory corrections column (17 January 2005; score: 30.92%)
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April 14th, 2005 at 12:03 am
The judge in this case said that the trade secret in question was not a matter of the public interest but the interested public. In that case, whistle blower legislation does not apply. Bloggers, journalists, it doesn’t matter, in this case the trade secret that was released was protected under California law. Both the informant and the publisher broke the law. Why is that so hard to understand. Didn’t anyone read the judgment?
April 14th, 2005 at 12:40 am
Al, I think you failed to engage with my point about the product release being figured out by someone as having some deleterious effect. Sure, it’s only a theory, an outside chance, but you need the law to allow for those.
I think the point that the reporting organisations are making is that the trade secret law is unnecessarily restrictive. Yes, in fact, that’s *exactly* what it says in the quote from the CJR quoting their amicus brief.
We’ve heard what the judge said about “interested public”. Now, can you face down the points made by the news organisations?
April 14th, 2005 at 1:49 am
The point that the journalists legally obtained the information is questionable. First, a contract was broken–the NDA. The rumor sites encourage people to break these contracts. Thus, they are culpable as participants.
But of course, the journalist didn’t break the law. They just encouraged it. To draw yet another analogy, if I–as a journalist–am looking for information on today’s hot young female pop star, I can suggest to someone that they break into her house and take pictures of her in the shower. If they do this, and I buy them, well, hey, I didn’t break any laws. Oh, and I should not have to tell anyone to whom I suggested doing this.
I’m sorry, but I still don’t buy it. Suddenly, we’re praising Big Media for filing briefs for the little guy. Frankly, Big Media is looking after their own self-interest. The Judge’s statement that an interested public does not equal “the public interest” hits Big Media hard because, ultimately, Big Media decides what is in “the public interest.” Britney Spears alleged marital problems? “The Public Interest” Michael Jackson’s Trial? “The Public Interest”
And Big Media certainly don’t want anybody second-guessing them–especially companies with lawyers.
The Media’s argument, of course, is that ultimately the public decides–by buying newspapers, watching TV, visiting websites, etc. They make this argument while, of course, trying desperately to get the FCC to rescind rules about how many outlets they can own. Big Media will decide what is in “the public interest” and they will make sure that they own all the outlets to present their version of “the public interest.”
Frankly, I’d rather have a judge decide. Remember, these are the people who insist that “the public interest” lies in five minute stories about Michael Jackson and “the public interest” certainly does not lie in telling us how our representative in Congress voted on a particular bill.
April 14th, 2005 at 2:53 am
Public interest takes precedent over trade secret. However, in the ThinkSecret case, there is no public interest concerns. There are only interested public. If someone stole your Social Security and credit card info, do I have the right to publish them for all the world to see? Hey, some interested people may love reading them. Do you think the thief should be protected by the First Amandement? Corporate fraud, graft, goverment corruption, public safety, etc. are of public interest. Knowing the shape of the next iPod is not.
CJR is making a mistake in assuming that as long as the journalists themselves do not have illegal access, they can do whatever they want. But as in ThinkSecret case proved, the illegal access is done when the employee broke their NDA in speaking to ThinkSecret. ThinkSecret promised confidentiality in return for the illegal act. That makes ThinkSecret an accomplice in the act.
April 14th, 2005 at 6:21 am
The California law makes an exception for cases where the trade secrets are hiding something that should be public. Presumably, in your example the judge would rule that these secrets were not protected. In any event, Apple is not charging the web sites with anything. It is seeking to force them to turn over the names of those who did leak the information.
April 14th, 2005 at 6:55 am
An example where I think you will agree that there must be limits on what a journalist can publish.
Let’s assume that you are an investigative reporter. Someone breaks into your office and installs a keylogger on your computer. Everything you type is relayed over the internet to this thief. The thief takes your reporting and sends it to a rival investigative reporter. This rival has had no hand at all in obtaining your work, he is just the lucky recipient. He notices that you are a good journalist and all the data coming to him is accurate and well established. So, the rival journalist simply removes the inconvenient byline from the reports he has been given and publishes them.
I ask you, is this OK?
If you don’t think this is OK, how is this different from what Apple is experiencing?
Apple is simply trying to discover who is stealing their trade secrets. The rest of the case is overblown by interested third parties. In the case of PowerPage, they published stolen documents by transcribing them onto a web page and removed the inconvenient “Apple Confidential” marks.
The judge has been extremely careful to make sure that this case does not have anything to do with journalists reporting on whistle blowers and other facts that are in the public interest. People need to take a step back and look at this using the golden rule. What would you like done if you were the aggrieved party in this case? What should Apple do differently? Should they just continue to allow their proprietary information to be stolen? What do they say to their shareholders if one of these leaks actually leads to a massive loss of revenue?
April 14th, 2005 at 9:46 am
The site loses? Why doesn’t the site get public interest protection? How does the Apple case set a precedent for people losing cases when they’ve revealed a trade secret in the public interest?
I accept the potential chilling effect, but I don’t see how a site like the one in your example would lose based on the Apple case.
April 14th, 2005 at 9:37 pm
Think Secret got the information legally - unless you’re suggesting they planted keyloggers (or whatever) on someone’s machine. They don’t know whether the people who channel information to them are under NDA; presumably they do get told some stuff and also get told it can’t be used (interesting question: whether and how often that happens). It’s the responsibility of the person who passes the information to the site to know whether they’re allowed to. This applies across journalism - and indeed human discussions.
The “anonymous installs keylogger to give to journalist” just isn’t an illustration of anything. It’s so far divorced from any sort of real-world case that it doesn’t work.
Though the points of “what should Apple do?” and “what if it loses a lot of money?” are good ones. The point being that plenty of adverse stuff has already been on those sites, including the stuff of lawsuits relating to Apple Retail. Apparently though it’s only stealing the thunder of Mr Jobs which attracts the lawyers’ ire. (Well, not only, but generally.)
Small Paul, the point isn’t that the site would lose; it’s that the chilling effect would mean it wouldn’t publish in the first place.
April 15th, 2005 at 1:17 am
Disagree Charles. In the Think Secret case, Apple told Nick this time and many times before that the stuff they published was protected and asked that they remove it from their web site. I’m sure Nick (and I) would’ve questioned it, but we don’t know what Apple said or showed to prove it, so we’ll have to wait until the case gets to trial. (For example, if it was similar to the situation with the Asteroid document, Apple could’ve shown them one page from that APPLE NEED-TO-KNOW CONFIDENTIAL presentation.)
It’s established practice from the many times before that you can go ahead and publish, and that Apple will let you know if they think it’s protected. Haven’t you seen this happen many times before: “Removed at the request of Apple Legal”?
Just remember that all information claimed to be a trade secret has to have been reasonably protected by the company - i.e, marked appropriately. It’s not that hard for a journalist to read, or to ask his informer, is it?