Not feeling sorry for Think Secret

by Michael Alderete on 3/9/2005 · 3 comments

There’s been a lot of press recently about Apple’s lawsuit against the Think Secret website, and virtually all of them assert that Think Secret has a First Amendment right to publish as they have been doing. Finally, someone has written — and done the research to back it up — what I had been thinking for a while: that it’s not unreasonable for Apple to sue people who publish their trade secrets.

It’s one thing to suppress protected speech; if Apple was suing to make the guy stop writing about how much he hates Steve’s black turtlenecks, or something else that was a matter of opinion or public fact, that would be one thing. But Think Secret is publishing commercial trade secrets, or at least trying to, and that runs into other laws besides the First Amendment.

Now, the court may eventually find in favor of Think Secret. And that would be OK. But it’s a complicated issue that deserves debate and deliberation, and the courts are the right place for that. So I’m not at all feeling like Apple is out of line for initiating the lawsuit.

{ 3 comments… read them below or add one }

AyeSquiddy April 13, 2005 at 9:25 am

(Caveat: all I know about this is what I read on the websites. I haven’t read the actual court filings.)

I have to say, I disagree with you on this one, Michael. Although ThinkSecret pushes MY individual boundary for what constitutes a journalistic organization (whether print or web-based), there ought to be no question that the press has certain rights. One of them is to publish material freely that they have broken no law to acquire. As far as I know, ThinkSecret is up on civil litigation, not criminal.

Apple may be pissed off at their leaks, but they have (and in my opinion ought to focus on) recourse in the courts through civil ligitation on the proper targets: people who broke their NDA.

Sure, Apple may find it effective to pick a weak opponent to set precedent and scare the press away from doing what the press ought to do (report on stories of interest to their readers). But Apple doesn’t get to control the press.

That’s where this ought to begin and end. Apple’s problem is with people violating a contract with Apple, not some web site that broke no laws. Screw with the first amendment at your own peril.

P.S. If ThinkSecret actually violated a law, I’ll feel differently.

P.P.S. If ThinkSecret violated a stupid law (e.g., “anybody publishing material they really ought to assumeis confidential is subject to fines and imprisonment”) that would nullifiy the above.

Reply

Alderete April 13, 2005 at 1:56 pm

AyeSquiddy,

The most thorough analysis I’ve read is MacJournal’s “Apple’s Incomplete Legal Victory”:http://www.macworld.com/news/2005/03/29/legal/. They go into detail with regard to the specific laws violated — and there’s no doubt laws were violated.

The question still remains, can Apple pursue the John Doe’s by getting access to the email and other records of Think Secret, Apple Insider, et. al. And I’m all for the decision to be made in the courts, where the decision belongs, instead of on weblogs like this one.

I know the knee-jerk reaction is to worry about the First Amendment — and believe me, I’m a big believer in that, possibly most beautiful of laws ever passed. But the First Amendment is not absolute. Anyone who can’t think of 10 exceptions to it either isn’t trying very hard, or doesn’t understand the First Amendment. The “California Uniform Trade Secrets Act”:http://www.lalabor.com/main/id/278.html, or UTSA, outlines a number of restrictions.

And there you go. As “John Gruber writes in Daring Fireball”:http://daringfireball.net/2005/03/discovery_ruling:

bq. So, yes, there’s a First Amendment argument that these sites have the right to publish this information, and to keep their sources confidential — but these rights are outweighed by California’s trade secret statutes and established case law.

I have yet to read or hear a convincing argument for why the First Amendment trumps trade secrets laws, which were all clearly passed post-First Amendment, so I’m kind of guessing it was taken into consideration.

Best!

Reply

AyeSquiddy April 15, 2005 at 7:44 pm

Hey there—some quick reactions.

First, if laws were violated, were they violated by the publishing entity? Or the “leaker” of the info? This issue seems essentially the same to me as the same issue confronted every day by major news outlets breaking (serious) news stories, and the relative inconsequence of ThinkSecret and this particular story topic doesn’t necessarily make it any different from the big boys’ issue.

Second, I too am anxious to see what the courts do.

Third, I’m interested in that link to California law (I don’t live there, and neither does ThinkSecret’s publisher, fwiw, so I’m curious why California law applies). That link is 404, unfortunately.

Fourth, Apple is not merely looking to mine ThinkSecret’s email for the leaker, they’re looking for damages against the publisher if I remember correctly. Big difference in my book.

I still would like to learn more about what law (if any) ThinkSecret violated. So far, all I can glean from this is that a major corporation is steamrolling a web site publisher because that corp is mad that someone broke NDA. Maybe there’s a bumper sticker in this. “Just because you’re a control freak doesn’t make me a lawbreaker.”

I still feel Apple should stick to suing the people who deserve it: people who break NDA. If we respectfully disagree, no worries!

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