Think Secret Gets Lawyer 371
im333mfg writes "Looks like Nick dePlume and Think Secret have gotten some much needed help for their upcoming lawsuit battle with Apple.
"Terry Gross of Gross & Belsky LLP, a lawyer at the forefront of Internet law since the net's early days, will defend Mac news Web site Think Secret from a lawsuit brought by Apple Computer Inc. 'Apple's attempt to silence a small publication's news reporting presents a troubling affront to the protections of the First Amendment,' said Nick dePlume, the site's publisher and editor in chief. 'I'm grateful that Mr. Gross has stepped forward to help defend these crucial freedoms.'""
Trade secrets (Score:5, Insightful)
As for the party that disclosed the information then they would be in breach of the NADA contract. Does Think Geek have to tell apple that divulged the information? Anyone remember Oliver North who forgot a lot of information during the Iran Contra scandal can attest that Think Geek surely can't remember the names either. Should Think Geek have to tell? Does the press have to cite sources? Nope they can protect their sources but if they can become in content in the courts and spend a little jail time - but were not talking about a murder trial or a treason tiral.
I'm confused (Score:3, Insightful)
Circle the wagons (Score:2, Insightful)
They do, after all, have a neato little touchwheel dealy on the iPod.
Re:Why not the EFF? (Score:5, Insightful)
1. The EFF might believe that the AppleInsider suit has less merit than this suit;
2. The EFF might believe that if the AI suit succeeds, the damage to our rights will be more significant than the damage to our rights if the TS suit succeeds;
3. The EFF might believe that the suits are substantially similar and are only out to establish a precedent, so it makes no sense to represent both defendants.
Re:heh (Score:1, Insightful)
They know who signed NDAs for what was published. They should start squeezing these people first.
Going after the ThinkSecret guy at this point is kind of like trying to put toothpaste back into the tube.
Publishing Stolen information (Score:5, Insightful)
If every individual has a right to publish stolen information with no expectation that they will ever have to reveal how they got that stolen information, then no one's information, no matter how private or trivial to the public interest, will be safe
Currently, personal and institutional information is protected in two ways: First, access to the information is limited to selected individuals. It is this limitation, enforced by technology like passwords, encryption and physical isolation, that most people think of as information security. The second protection is the contractual and legal obligation that people with access to the information have to not misuse it.
No matter how elaborate the technological and procedural protections for everyone's information, at some point that information gets viewed by a human being. If we have no legal means of holding those individuals accountable then information security, and the privacy it brings, is a dead letter. Granting everyone, from private individuals to vast commercial interests, the right to disseminate stolen information destroys the second protection utterly. Anyone with access to protected information can steal it and perhaps even sell it with little expectation they will be caught.
What we have here is a tag team of privacy violation. The thief steals the information and then the publisher "fences" it. Shielding the thief as a "source" could open the floodgates for information theft. Today, we see the violation of Apple's NDAs (Non-Disclosure Agreements) but the same legal concept could just as well apply to an individual's medical and financial data. Even if the actual theft were theoretically illegal, how could one prosecute if the person disseminating your private information had a legal right to protect the identity of the thief?
The internet changes all the rules. The old style press shield laws won't work in the internet era.
Re:Trade Secrets? (Score:4, Insightful)
Which is worse? (Score:3, Insightful)
Re:It's not like he's Bob Woodward... (Score:3, Insightful)
Are you really telling me that news sites can't dig and try and find out stuff? Are you really suggesting that if PC Week finds out about a Microsoft bug it shouldn't be allowed to publish it?
Apart from anything, ThinkSecret is not in any contractual agreement with Apple. An Apple employee broke an NDA (a civil contract), and Apple (understandably) wants to find out who it was. But ThinkSecret wants to keep getting scoops (as would any newspaper or journal) and so is (rightly) fighting Apple's lawsuit.
I love Apple. I just ordered a Mac Mini. But in this case, you have to support ThinkSecret.
Re:Trade secrets (Score:3, Insightful)
A minor point that most people happen to ignore...
I love Apple rumors but... (Score:4, Insightful)
But that said, I do think there is a line between freedom of speach and soliciting priviledged information from people you know shouldn't be talking to you.
It isn't enough to say "I have annonymous source e-mail". If you are going to be a reporter, then there are ethics involved. Getting the scoop on a story by any means doesn't cut it for me.
Plus, did you see how wildly Apple's stock was swinging around all these rumors? we are talking 7% in a day market cap swings - that is big stuff for a teenager to be toying with.
How is it different? (Score:4, Insightful)
What about distributing sensitive classified government documents, such as the names of undercover agents, on "ThinkCIA.com"? When they get offed, and the feddies come knocking, you will be free to argue your 1st Amendment rights to yourself for the rest of your life while you rot in solitary confinement.
ThinkSecret redistributed stolen, protected information. This is not protected speech. In this case ThinkSecret are not journalists, they are accomplices!! And accomplices that **profited** from their actions, I might add!
The only event in which this *would* be protected speech would be if the stolen information exposed some crime in Apple, in which case whistleblower laws would protect the informants. Get a clue, gentlemen: the 1st Amendment does not give you unlimited rights to broadcast whatever you want. It does not protect you from having your trolls deleted by forum mods, or your letter to the editor from being thrown away unpublished. It protects you against being censored by the **government** for spreading your political and/or religious beliefs, even if they are contrary to what the govt. is promoting. THAT is your freedom, not the right to post warez, not the right to break your NDA, and not the right to take a handoff from somebody that breaks THEIR NDA and make a pocketfull of cash on it. You don't have to be a lawyer to know this; paying any attention in High School Govt. class (for US citizens) should be background enough.
Tactically, this doesn't seem like a good idea... (Score:3, Insightful)
1) publicity for its opponents' website.
2) a black eye for going after people who don't like them
3) no leaker if he took any sort of precautions.
So, for the cost of some lawyers, Apple gets to publically crap on the 1st Amendment while not getting their leak plugged. Slick move, guys.
As another poster suggested, why not use a Canary Trap to tag the leaker - change a few decimals in specs before publication. If there's only one source, then the editor of ThinkSecret has to use the numbers he's given (numbers that are really vague won't get him any hits), and the numbers will reveal sets of sources that can be narrowed down. You don't spook the leaker, and you can dispose of him at your leisure. Another alternative might be to sue for potential stock value losses due to the timing of the leak - but that probably will neither look much better or have a better chance of winning.
Re:More relevant links (Karma Whoring) (Score:3, Insightful)
Indeed, just look at those cases. I mean, who could forget the high-profile highjinks of the OJ Simpson fiduciary misconduct suit against Lawrence Schiller, Robert Kardashian, Project 95 Production Inc., and Does 1-40?
Surely the unforgettable tale of the Republic of Cuba and its agencies and instrumentalities in their desperate struggle to avoid garnishment by Marlene Alejandre over debts owed to a Cuban telecommunications company will live on in the hearts and minds of the millions who followed it for years to come?
And certainly few cases have dominated headlines and generated as much publicity as the brave fight of Susie Carter and AlaskaMen magazine in their brave struggle to avoid editorial domination by Media Mix Marketing of Hollywood.
Cleary the law firm of Gross & Belsky LLP is nothing but a pack of publicity crazed attention whores, moving from one incredibly well known, high profile case to the next. The only wonder that is he hasn't yet made Time's list of the 50 most influential people in America.
Re:Publishing Stolen information (Score:3, Insightful)
That's easy: Journalism shield laws protect sources of information that are newsworthy. The fact that Apple is going to ship the mac mini? Newsworthy. My prothrombin time test results from last week? Not newsworthy. Why not? Two excellent reasons: I am not a public figure, therefore nothing about my daily life is newsworthy, but even if I were a public figure, the law carves out exceptions for personal *detailed* medical and financial information that imposes a duty on *everyone* who gets ahold of them.
Anyone who thinks Apple should win this should consider the question: at the core, how different is Nick dePlume's journalism from what Woodward and Bernstein were doing to uncover Watergate?
Other considerations, and identity of Nick dePlume (Score:4, Insightful)
What remains to be seen is what, if any, of these laws apply, and whether or not the laws of Massachusetts, California, federal, etc., can be applied to this case.
And, as many people have said, they don't really care about Nick Ciarelli (yes, for those who don't know, he's 19 year old [washingtonpost.com] Harvard student [thecrimson.com]). They care about finding out who within the company (or contractor, etc.) is continually leaking this extremely accurate information to Think Secret. And no, it's not "known" elsewhere. He's got a very reliable mole, or a set of them, and Apple wants to know who they are. Hint: yes, these are people who definitely have binding confidentiality agreements with Apple.
Regardless of whether or not Apple "should" or "shouldn't" be doing this, whether it's good PR or not, etc., if you can't see that it's wrong, legally and ethically, for these people to be leaking this information, then, well, we have nothing further to discuss. Further, whether or not Nick should be publishing it is a subject of further debate, but he's the one person who knows who these people are. Is it journalism and free speech when you violate laws (the one I spoke of in the first paragraph) to obtain information? Ignorance of the law is no excuse...
And remember, whether or not you fundamentally *agree* with the law is irrelevant. It's either illegal, or not. (Yes, yes, sure, there's gray areas, but that's not the point I'm making. And sure, maybe Nick "fighting it" in this way is one mechanism to examine the validity of these laws, and further, the role of an online journalist and his information gathering mechanisms, what can be construed as soliciting known confidential information, what constitutes a violation of these laws in this context, etc.)
Just some things to think about.
Re:How is it different? (Score:2, Insightful)
Posting an article with the specs for a new product is not (unless said article is accompanied by copyrighted text and/or pictures), even though Apple tried to slap Think Secret with a C&D anyway. Not having seen the offending site, I can't say for sure if he had posted such materials or not.
Re:Trade secrets (Score:5, Insightful)
they don't have a case against him
You are very likely incorrect. First, many states have laws against revealing information that you know is a trade secret without permission from the owner of the secret. Next Apple has a pretty iron-clad case that "John Doe" broke the contractual NDA. They have every legal right to subpoena ThinkSecret for his name given that ThinkSecret cannot plead the 5th since this case is not criminal and since whistleblower laws to don't apply since their was no public health or criminal activity on Apple's part. You are correct that this is pretty open and shut, but incorrect about who will win. This is a simple contract violation with basically no mitigating factors. Any news source is legally bound to answer a subpoena unless they are accused of a criminal violation and would be incriminating themselves, or unless whisteblower statutes apply.
Re:heh (Score:3, Insightful)
Re:Other considerations, and identity of Nick dePl (Score:2, Insightful)
Sometimes its nessasary to break the law to get it overturned. Secondly, what reason should I have to follow a law that does not have the publics interest at heart? Laws are made to protect the public good, personally I dont see this law as something that protects my rights as an individual. its just another step in the chain of events that takes away freedom of speech and freedom of choice. Companies dont have a god given right to the protection of profits.
Regardless of whether or not Apple "should" or "shouldn't" be doing this, whether it's good PR or not, etc., if you can't see that it's wrong, legally and ethically, for these people to be leaking this information, then, well, we have nothing further to discuss. Further, whether or not Nick should be publishing it is a subject of further debate, but he's the one person who knows who these people are. Is it journalism and free speech when you violate laws (the one I spoke of in the first paragraph) to obtain information? Ignorance of the law is no excuse...
Ethically? please. its legally wrong but thats about it. Laws like this are created to give the wealth power and they directly take away from the interests of the public. Whats more important? Interests of Profit or Public? Its the wellbeing of people, and free exchange of ideas, that should always come before Profit. Why the hell would anyone want to obey a law that does not benifit the public is beyond me. Ohh I forgot, business interests come first right? sorry but I could care less about corporate interests, its just money.. they have to compete in an age where information cannot be controlled, so learn to work around it or die.
Nope ... (Score:2, Insightful)
Nope. It's like a blogger encouraging an engineer from the car manufacturer to break his NDA and send him pictures of the new car which are then posted on the internet.
Re:Other considerations, and identity of Nick dePl (Score:4, Insightful)
I hate to tell you this, but there's a balance. And sometimes the concept of "Profit" of "Corporations" - those who employ the Public - is good for that same Public. Sometimes the protection of the mechanisms that make us a prosperous society and protect the concept of fair competition are good for that same society.
Don't talk about information as if it's some fanciful abstract thing that should fly free as red breasted robins now that we have the amazing Interweb. You make a gentleman's agreement with your employer to not leak his secrets to the world, you fucking keep it. You don't surreptitiously break it, secretly leaking private information that you have been TOLD is private, and asked not to leak, as a condition of your employ, for years to feed your own sense of selfishness, or self righteousness, or self confidence.
Just because it's easy to do something doesn't mean you should do it. Please tell me how it is inappropriate for a business to want to keep its own ideas secret. If you're just one of those anti-corporate anti-business types, or think all information should always be free and unlimited under all circumstances, then you needn't reply, because we'll be in fundamental disagreement.
Re:Crapintosh (Score:3, Insightful)
Grow up moron. All companies are out to $make$ $money$ period. Even the ones that hawk Linux and Linux wares.
If the Mac is a better computer with a better OS you are only hurting yourself. If the PC is a better computer with a better OS then you have made a good choice.
But they all have lawyers, and they all use them, and the ones on top are way way richer than you or I. No matter which computer you buy.
So why do so many support Apple (or Apple products?) Because we use them ourselves. And if more people use Apple computers, more stuff will be made or sold that works with and runs on Apple computers. We win. None of us actually care about how rich Bill or Steve or whoever are getting. We all know they are on top. But in the end I want to use my computer the best way possible, and I support anything that helps me do that...
And Apple is cool.
Not really sure what to think about this (Score:4, Insightful)
From one point of view, I agree Apple is being a bit of a hardass about this. This isn't the only site leaking news. As I recall Hitachi leaked that Apple signed to purchase 60GB mini drives (now used on iPod photo). One of the IC manufacturers said that Apple signed on some flash memory technology... etc. etc. etc.
I didn't see big lawsuits on those. And lets not forget about Time revealing the new iMac.
on the other hand...
I do believe that Think Secret has been itching to get accurate insider details. And in recent years have had way to much accuracy.
Take a look at their contact page for a great example of how eager they are:
http://www.thinksecret.com/contact/ [thinksecret.com]
voicemail, fax, email, online form, postal...
any method under the sun. I can't think of any other news organization so willing to cater to potential informants.
A company does have a right to use Non Disclosure Agreements to keep trade secrets. Every company does it. It's normal business. I can't think of one company that doesn't do it. Even non-profits have to do it.
Soliciting someone to break it isn't ethical. That's the bottom line. And it's not really freedom of speach.
Encouraging someone to commit an illegal act or break a legal agreement isn't good.
Someone who hires a hitman to kill his spouse isn't any better than someone who does it themself. Encouraging people to do your dirty work doen't make you any better than the guilty party.
IMHO this is a pretty simple case... and will likely be settled out of court. I can't see ThinkSecret standing up in court... they have no real defense. This isn't freedom of speach anymore than saying you have a bomb on a plane.
They will settle on undisclosed terms, ThinkSecret will walk away with it's tail between it's legs covering it's severed ball-less scrotum.
Thinksecret will re-invent itself a bit, and stay clear of this activity... all will be happy.
There not going to court. ThinkSecret can't be that stupid. They have no defense that won't cause a judge to (literally) laugh at them.
Do not taunt Happy Fun Steve! (Score:3, Insightful)
If anything, I think Steve does not like anything that ruins his mystique as the giver of all things "Ooh and Ahh." As "punishment" to the rumor-mongering hordes of the internet, Steve banished the entire lot of 'net users from viewing his keynote at Macworld.
Three simple rules for "How NOT to get sued by Steve's Apple machine":
He's not the world's richest man, but he has lawyers and a penchant to unleash them on people who f**k with his world.
It might be one's right to contradict the above caveats, however, beware: Just because you can, doesn't mean you should and just because you think you should doesn't mean you're right. Of course, this axiom goes both ways, but good luck when dealing with a megalamaniac who runs a large company with lots of cash.
Your mileage may vary. Void where prohibited.
Re:Trade secrets (Score:2, Insightful)
Copyright vs. Trade Secret (Score:3, Insightful)
Well, for one thing, those would be protected by copyright law.
ThinkSecret redistributed stolen, protected information. This is not protected speech. In this case ThinkSecret are not journalists, they are accomplices!! And accomplices that **profited** from their actions, I might add!
The question is whether this sort of information is protected information. If somebody off the street comes up to me and tells me "hey, apple is coming out with a new flash player device called the iPod Shuffle" and I post this infomation online, have I done broken the law? Certainly not copyright law, because information cannot be copyrighted, only actual text and photos and such can.
Now, some laws exist to prevent the release of trade secrets, this much is true. However these laws might be superceded by freedom of the press. And the press is defined as anybody reporting information to the public, like it or not. He has every right to argue that he was publishing as a journalist. Whether he makes a profit on it or not is irrelevant. The New York Times sells advertisements and subscriptions, after all.
And it's really quite debatable whether the knowledge that Apple is making any particular product is indeed a "trade secret" or not under the definitions used in the law.
If he had posted copyrighted material, he'd have no case. As it is, he does have a case.
Re:Trade secrets (Score:1, Insightful)
Re:Trade secrets (Score:1, Insightful)
Yet that was not the case of it -- the "crime" the eleven were arrested for had nothing to do with Bible reading but everything to do with being disruptive of the peaceable assembly of others to the point that it looked like they were attempting to incite a riot.
Unfortunately, the small group of eleven self-proclaimed Christians chose not to be peaceful in their protestations against homosexual people. And, by disobeying police orders, this small group of eleven self-proclaimed Christians got in trouble with the law. Don't like it? Talk to your government representative about changing the laws which require citizens in public to obey police orders (no matter how unreasonable those orders may be). Btw, the incident was caught on tape in case you want to review what really happened that day.
Re:Trade secrets (Score:3, Insightful)
See, the problem with this is that it presumes that ThinkSecret and Nick DePlume (love that alias) know the identity of "John Doe". What if the leak clicked 'Post Anonymously' (or whatever)? There may be no way for Apple to obtain the info it seeks because it is simply unknown.
(tig)
Re:Trade secrets (Score:2, Insightful)