Apple’s shame continues

In the case of Apple versus three bloggers who had the audacity to publish confidential material leaked to them by Apple employees, the San Jose judge has ruled that the three must reveal the source(s) of the information.

This is fairly typical of press shield law cases, and the bigger question is, of course, are these bloggers covered by that?

Apple says no — that such protections belong to “legitimate members of the press” — but the answer has to be yes, or we’re headed down a slippery slope that leads to trouble for the First Amendment. It’s that serious, folks. Do we really want business or government deciding press legitimacy? Of course not!

Will these bloggers go to jail to protect their source(s)? Probably not. Will the mainstream media come to their defense? Probably not. Will anybody besides the Electronic Frontier Foundation stand by their side? Let’s hope so. The San Jose Mercury News reports that Thomas Goldstein, a former dean of the Columbia University Graduate School of Journalism and worked as a reporter for the New York Times, filed a brief in support of the Web sites.

“Just because Apple does not want these publications to report on its activities does not mean that they are not news publications,” Goldstein wrote.

Amen. Steve Jobs’ problem is with his employees, not these bloggers.


  1. Let’s not trot out “Frist Amendment” here; Apple’s not the government and the Constitution only defines what the Federal Government (specifically “Congress shall not”) can or can’t do.

    The judge is a member of government at some level, but (s)he’s not making a law. The main law about forcing someone to testify only applies to testifying against yourself (or your spouse, I believe).

    That said, I agree that Apple’s in the wrong here.

  2. The judiciary has been building its own laws ever since the beginning. Case law holds precedence in case after case in our courts, so I’m always suspect when I hear “that only applies to Congress.”

    You are absolutely correct in theory, but life has a way of chipping away at the theoretical. In theory, Supreme Court rulings, for example, should only apply to the cases for which they are called to hear, but that’s not the way it works in practice. Even when Congress does make laws, the judiciary can override them through our system. It is not congress or state legislatures I fear. It’s lawyers and the courts.

    I believe this is very much a First Amendment case, because the precedent of determining who is or isn’t a journalist has far-reaching ramifications as it relates to who is protected and who isn’t under the “freedom of the press” provision.

    The people who made up “the press” when our founders wrote those documents were a whole lot more akin to modern day bloggers than today’s institutional press, and it bothers me more than a little that this ruling cozies up to the status quo.

    The California shield law should protect these bloggers, but the judge has ruled that it doesn’t. That’s a shame, and I think it’s an important case to watch.

    Meanwhile, however, Apple looks ever much the villain.

  3. I somehow think that the founding fathers were hardly trying to protect the press so they could actively urge people to divulge proprietary commercial information. If the blogs were disclosing illegal activities, government misconduct, or deleberately hidden flaws in products I might have some sympathy. If they were publishing their own speculations or snippits from overheard public conversations, I might have some sympathy. But I really don’t have any in this case.

  4. This is a complex issue. Freedom of speech and freedom of the press don’t eliminate responsibility for what’s said or published. The First Amendment provides a right to publish, not a shield for what is published.

    As for the allegation that these sites are “blogs” — it’s nonsense. They’ve all been around for years, long before blogging became a fad. The “blogger” label makes it easy for some to dismiss the publishers and their sites.

    Of course, I wouldn’t call most of these people “journalists” either. (I don’t apply that label to my writing either.) They provide a similar service to journalists (dig up information and publish it), but it has nothing to do with “the public’s right to know.” It’s more about curiosity, speculation, dreams, and the hopes of Mac lovers.

    These aren’t really news sites — but the the first amendment doesn’t apply just to news. Shield laws probably do, however. That’s one of the things the courts will have to decide.

    We’re dealing with information here, not candy bars, and the law protects those who publish truthful information, whether it’s the Watergate break-in or the iPod shuffle.

    Apple has a right to go after those who violated their NDAs, and to do that, they have an obligation to do whatever they can to identify them. That’s what this lawsuit is about.

    The question is whether shield laws protect the publishers of these rumor sites from disclosing their sources.

    Dan Knight,

  5. I agree with Dan and Jeff. Listen. The issue here is not free speech. The issue is that Apple had trade secrets that were leaked by people who signed non-disclosure agreements. That means THEY broke the agreement and Apple has the right to prosecute them. How is Apple to blame? Then, after the agreement was broken, the websites took the information that they should never have been privy to and leaked it to the public. Where does the 1st amendment fit into this issue? It’s about NDAs being broken, not free speech. A lot of people are siding with the “bloggers” I believe more out of a technophobic knee-jerk reaction based on the premise that everything on the Internet is free and we can all do what we want. But Apple is a company trying to make money. They have every right to keep their secrets private. They base a lot of who they are as a company on these secrets. It gives them a competitive advantage in the marketplace, and allows thousands of people working for Apple to continue working. Let’s not forget that. Apple is not just Steve Jobs. It’s a lot of other people who want to stay employed. Bashing “Apple” or Jobs is not looking at the whole picture.

  6. If they published information they knew was under a NDA they are wrong. These sites encourage people under a NDA agreement to break the agreement. That is the same as encouraging somebody to steal and give you some of the booty. Apple is basicly asking for the names of thiefs that supplied the sites with stolen products. Maybe Apple should file criminal charges against them for receiving stolen merchandise. Remember if I sell a candy bar and give give it to you, you have broken the law same as me.

  7. Correction: Remember if I *steal* a candy bar and give give it to you, you have broken the law same as me.

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