Sunday 6 March 2005

profit v. civil liberties

PROFIT V. CIVIL LIBERTIES? In Apple’s zeal to protect its business interests, the lines of contractual obligation and fundamental civil rights in the U.S. come under question.

In my most recent post, I discussed my disgust with Apple’s attack on several bloggers to reveal sources who allegedly leaked trade secrets. Those secrets were in turn published to several blogs. The questions that come out of Apple’s approach are profoundly important not only to media professionals, but all citizens of the United States and ultimately, citizens of the world.

Several comments to my initial post revealed a concern that I didn’t address. Does Apple have the right to protect its business interests? The answer is obvious – of course they do!

But, as Jim points out in his right-on, to-the-point comment:

This is not a 1st Amendment issue. It is a tort (aka civil) issue.

This is the essence of why I for one believe Apple’s strategy is out and out wrong. The bloggers are correct to defend their First Amendment rights, Apple is incorrect for bringing the First Amendment into what is a business issue in the first place.

The violation of non-disclosure agreements (NDAs) is – read this carefully – not a criminal act. This is why comparing the actions of those who might have violated a NDA and those who published the information to murderers and thieves is erroneous by the standards of U.S. law.

What may exist if a NDA is proven to have been breached is what is known as a tortious interference with business. Breach of a NDA may result in fines, or other civil ramifications, but most decidedly not criminal ones.

You see, here in the U.S. we aren’t supposed to mix our business interests (which are heavily regulated by the government already) with those civil liberties granted us via the Constitution and its amendments.

Where Apple has gone astray is that it is trying to apply what is a fundamental right, Freedom of Speech, to its business interests. The specific offense of Apple’s actions is that they are taking aim at this fundamental right rather than pursuing the issue via more appropriate means. By pressuring the media to reveal sources, Apple is asking the media to be subject to Apple’s contractual interests, thus making Apple’s contract law more important than the fundamental civil liberties granted to all citizens of the United States.

The moment any company is granted authority over civil liberties and profit takes precedence, the very foundation of U.S. rights is threatened and it becomes easier and easier for business and government to interfere in fundamental rights. The civil liberties afforded U.S. citizens are a part of the strong fabric of this nation. Going against these rights tears that fabric, which in turn weakens those rights, which have already been fraying in unattractive ways over the past few years.

Yes, Apple has a right to protect its interests, and it should do so using appropriate tactics. By bringing the First Amendment into play and questioning the veracity of contemporary media, Apple is playing a very dangerous game with very sophisticated players.

I admire Apple so much for a variety of reasons. I hope that they figure out how to mitigate their approach here with a more appropriate strategy. Having their lead attorney go up against the fundamental civil liberties of any person is a bad move legally, politically, and ethically.

What’s more, going up against bloggers is stepping deep into the muck. No matter whether or not we as bloggers are acknowledged as part of the free press, the fact that we’re a highly informed, well-connected culture makes taking our freedoms to task decidedly perilous. Apple of all companies should be at the forefront of recognizing human progress as it relates to computing and communications, not attempting to invalidate us all in its own blind rage.

Filed under:   general
Posted by:   Molly | 13:33 | Comments (15)

Comments (15)

  1. What I find/found particularly ironic about this incident is that a couple of years back immediately before a MacWorld Expo down in San Francisco one of the weekly news magazine (Time, Newsweek, whatever) had a story as well as cover photo of Steve Jobs with the new version of the iMac machine. The so-called goose-neck model.

    At any rate the clowns at Apple Computer Goober Central approve the photo and story because the date of the publication was for the Monday after the expo, i.e. no secrets (or cats) being let out of the bag as the expression goes.

    The only problem is that the kids working for Steve weren’t aware that these ‘news magazines’ distribute to retailers on Monday with the next Monday’s date. Which is kinda interesting when you think about it – a news magazine publishes a week ahead.

    Regardless what happened is that the photo of the new whiz-bang computer was right there on the cover and in stores before the expo had begun.

    I don’t seem to recall Steve and his bastion of attorney’s going after Time-Warner/AOL but then again Steve may be a lot of things but shy about publicity isn’t one of those things.

    I think I need a hankie!

  2. Molly, I think you’re being way too harsh – and possibly even incorrect – about Apple in a very important way. Here’s the sequence of events as I remember it:

    (1) ThinkSecret published detailed information about what Apple will unveil at MWSF, ascribing their source as anonymous.

    (2) Apple sends ThinkSecret a cease and desist (or whatever legal term fits), claiming ThinkSecret violated trade secrets.

    (3) In very quick fashion, possibly even before Apple contacted ThinkSecret, numerous Mac sites picked up on what ThinkSecret posted.

    (4) ThinkSecret did not pull the post, claiming First Amendment rights to free speech. THIS IS THE FIRST MENTION OF THE FIRST AMANDMENT BY ANY PARTY.

    (5) Unable to contain the rumors, Apple brings up a lawsuit – a civil action – against three (um, not “several” IMO) Mac rumor sites, claiming that their trade secrets were illegally exposed.

    (6) It gets revealed that ThinkSecret is run by a 19 year old college student who is unable to pay the legal expenses he’ll likely need to defend himself. (On another aside, why did he simply reveal his source – a souce who likely DID violate an NDA – and save us all the hassles that have resulted?)

    (7) The EFF comes to the 19 year old’s rescue, and… claims he has First Amendment rights to publish what he did. THIS IS THE SECOND MENTION OF THE FIRST AMENNDMENT.

    (8) Sometime around here, MWSF wraps up and in fact nearly every single detail of every single product ThinkSecret brought up was true.

    Now, if this is not accurate, please – correct me, and then flame me to kingdom come. But if this is basically accurate, tell me… exactly where did Apple come to blame for bringing the First Amendment into the situation?

    A woman murders her husband. The state brings up charges. The woman claims battered-wife syndrome in defense. The prosecutor at that point MUST reply. But it isn’t the prosecutors fault for this.

    Fault ThinkSecret and the EFF for bringing the Frist Amendment into this case, not Apple.

  3. Dave,

    Great timeline, I thank you. But perhaps you missed George Riley’s comments to the press (as he defines it). I suggest you go back and read those – that’s in part where the problem, at least for me, lies.

    Business is business, civil rights are civil rights. It’s perfectly okay for a citizen to defend his or her liberties at any time. It’s not appropriate for Apple to publically point to the failings of the press and whether a web site is even protected under those liberties, or even respond to anything related to those liberties. It’s a business matter. Why has it become a civil liberties issue? Again, it does not matter that a citizen or the EFF has brought up the issue of Freedom of Speech – that’s a reasonable defense in both instances to protect journalistic sources. Had Riley kept his lip zipped about all of this, I wouldn’t be so up at arms.

    There is also always going to be a bias at my site – that’s why it’s and not I am in fact a left libertarian and anything that touches civil liberties is going to be of major issue to me. Those liberties are what I believe define the real greatness of our nation (not our weapons or our money), and I cannot sit by and not invoke my own right to freedom of speech – and yours too for that matter – by writing my take on things via this blog and offering up the space for you to do the same. It is the action, not the inaction, that helps us progress, even if we make mistakes or falter along the way.

  4. Thanks for the reply Molly. I agree with what you say about your rights. I also agree with what you feel about the First Amendment. For the record, I’m your classic “neocon”. Too young to understand Viet Nam, just old enough to avidly follow Watergate, voted for the Green Party in 1980… and voted for Bush in both 2000 and 2004 after both feeling ashamed that Clinton supposedly represents my generation’s morals and that the opponents for Bush basically sucked.

    But again, let me ask you this, what should be George Riley’s reply to the concept that Apple bringing up a lawsuit – one that you even say in your post is over trade secrets – is improper because the defendents have First Amendment rights? He has to address his reply to the question… both in the media and in court.

    This is a tough situation. Yes, it IS a tort matter. Yes, the sites have every right to post what they should. And yes, Apple has a right to defend their intellectual property.

    Know what I think? ThinkSecret blew this one big time. They had a chance to settle out of court, whatever the fashion. But once they (I’m using something like an editorial “we” here I know) saw the public outcry over how “it’s about a 19 year old college student” I believe ThinkSecret figured two things: (1) there’s major headlines (read:site traffic) to be made here, and (2) they could actually win this case. And it’s now potentially backfiring in their face.

    Both sides are at fault. Apple has been exceptionally heavy-handed. Or at least that’s what is known for now. But to not blame the defendents for any of the constitutional mud being slung… well, I just don’t see it.

    Oh, and thanks for letting me state my opinion freely here. You are a person who has credibility in my eyes. You not only talk the talk – you walk it too. I do appreciate that.

  5. Dave,

    You make some astute points. But Riley has no obligation to make personal views public, and what he said regarding the media and freedom of speech was (and almost any attorney will agree) really a matter of opinion and not fact, and certainly not law.

    His words do exactly what you say ThinkSecret did here – spins the situation to media hype instead of the real issue. Riley would have done better to simply say “no comment” or “we are working on a solution” or “we will follow up on this issue in civil court” – anything but making reckless statements about the press, who the press is, and how the press is or is not protected.

    Again, my position stands. It was perfectly acceptable for ThinkSecret to bring up the issue of the First Amendment. It was not, in my opinion, acceptable that Riley address that at all. His job is to protect Apple, which is exactly the opposite of what he’s done if not at a practical level, at philosophical and ethical ones.

    Another bias I have is that I am a journalist, both by education (M.A. in Media Studies) and the fact that I possess press credentials. However valid a media person that makes me, these issues not only run deep into my own political values, but my concern for what makes a journalist in the first place – which is really the underlying motivation for these posts. It remains my opinion that a blogger publishing to the live web is for all intents and purposes a publisher, and therefore a member of the media.

    This is where Riley really got my goat.

    Thank you Dave, for the fair and balanced responses. These discussions – even though we might disagree on points – are the absolute proof that Freedom of Speech is alive and well and as critical to our progress as is the need for food and water to keep us alive.

  6. After reviewing the merits of this case with my attorney, he agrees with Dave that this is primarily a NDA issue.

    If Apple can prove that they were “harmed financially” by the early release of the information in this case, they have a case to pursue reimbursement from the bloggers (or their ultimate source). If not, the case and all of its implications should be thrown out of court!


  7. Russ,

    Yes! That’s the point, it’s a NDA issue and should therefore be managed in civil court under contract law.

    If in fact anyone violated a NDA, he or she should be fined. The bloggers, however, retain a distinct position in my opinion. They are protected far more than someone who signed a NDA and should be treated as such – the press – which is protected by the Bill of Rights here in the U.S.

    It’s that simple.

    I bet dollars to doughnuts that Apple knows who leaked this info. If they do not, maybe they should begin looking at what’s going on under their own roof before pointing fingers elsewhere.

    What a great conversation, folks!

  8. Molly, I agree with you on all the First Amendment stuff. We need to protect that to the end. But in one or two of the articles I’ve read about this case, I’ve seen an alternate argument arise that seems to justify Apple’s actions.

    Apple is claiming that Think Secret is publishing information that it knows to be a trade secret. And, apparently, that is against the law, and might not be quite the same as freedom of speech.

    From an article at the Harvard Crimson:

    Milgrim agreed, saying that even if Ciarelli had not solicited trade secrets but had simply posted them, he might still be liable under California law.

    “California is one of approximately 44 or 45 states that have adopted [the] Uniform Trade Secrets Act. That statute makes it wrongful to acquire or publish without authorization information you know or have a reasonable basis to know is a trade secret of another,” Milgrim said.

    “Just because you receive something on the internet does not mean you have a green light to do whatever you want with it,” Milgrim added.

    If this is the case, that Apple can show that Think Secret solicited that it knew to be a trade secret, I’m not sure where this should land. It will be interesting to see…

  9. After reading all of that, all I can say is:

    “Yea, what she said!”

  10. The print-version of the Globe and Mail newspaper has a section at the back of the first section called Word Watch. In Friday’s Word Watch was the word “dooced” which means “in the strange world of urban slang, being dooced means losing your job for something you wrote on your blog or website” (quoted from Britain’s Independent newspaper.

  11. Interesting points, but I think you are missing the main point – that they actually have a VERY strong legal case that doesn’t have anything to do with the 1st amendment, or the NDA specifically, but trade secrets.

    Daring Fireball puts the case better than I could –

  12. Hi Molly ,
    anyone ever told you how beautiful you are if not you are so sweet your smile and that gorgeous face man any guy would die for you.

    I tell u a story ,
    A girl asked a guy if he thought she was pretty, he said…no. She asked him if he would want to be with her forever….and he said no. She then asked him if she were to leave would he cry? and once again he replied with a no. She had heard enough . As she walked away, tears streaming down her face the boy grabbed her arm and said….You’re not pretty you’re beautiful. i dont want to be with you foreveri NEED to be with you forever, and i wouldnt cry if you walked away…i’d die……..

    I m a that kinf of guy …….who give me love ….I give her my whole life.

    So think about it.

    Love u.


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  15. i have a question more than a comment. i realize most threads to this are a little old but this a recent issue with me and i’m looking everywhere for answers. i work for a company that recently discovered a blog started by another employee. it was found by a customer of their stores who didnt like the fact that the employees were “bashing” customers. As a result of this i have been suspended from my job, i dont know what happened to the others since they are mostly on the other side of the country, and i will know on monday whether or not i still have a job. my question is can this company fire me for my bashing of customers? its not like i leaked company information or anything like that. any help is greatly appreciated.

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