Apple's Leaky Ship: A Free Press, Trade Secrets, and Nondisclosure Agreements

There's a been a lot of good commentary on free speech, journalism, Apple's rights, and the nature of the press since Apple first filed suit against Think Secret on the eve of the January Macworld Expo.

Apple contends that Think Secret, as well as AppleInsider and PowerPage, knowingly published trade secrets provided to them by one or more individuals violating their nondisclosure agreements (NDAs) with Apple. Apple has also subpoenaed these sites to learn the identity of their sources.

These websites, two of which deal primarily in rumors and discussion of prerelease versions of Mac OS X, contend that they are news media, so their reporters should be covered by shield laws.

There are a lot of other issues here, such as Apple's claim that Think Secret actively induced their sources to violate their NDAs and whether a "blogger" is a "journalist". I've commented on several of these issues elsewhere but haven't yet published my thoughts on Low End Mac. So here goes....

First, I'm tired of seeing people who publish on the Web called "bloggers" - even if they don't publish blogs. Blogs, short for "Web logs", are a popular form of publishing personal opinions on the Web. Many are little more than online diaries, journals, and ramblings.

Think Secret, AppleInsider, and PowerPage are not blogs, so it's not appropriate to label their writers as bloggers. Whether it is appropriate to call them journalists remains to be seen. There are many different kinds of writing on the Web - commentary, reviews, humor, and exposition among them.

The same can be said for traditional media, such as newspapers, magazines, radio, and television. The type of content found on a website and that found in traditional media is identical, so Internet media should receive the same free speech and free press protections as offline media. (In some cases, the same articles published in print are also posted on the Web.)

That said, 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. Publish libel, get sued. Publish trade secrets, get sued.

And that's exactly what's happening to Think Secret, AppleInsider, and PowerPage. They have published trade secrets. They are being sued.

Rather than call those who writer articles for these websites journalists, reporters, mavens, or rumor mongers, I'll just call them writers. The courts will have to decide whether they are journalists and whether their sources are protected by shield laws - and this would be equally true if Apple was suing CNET, The New York Times, or your local Top 40 radio station.

Anyhow, the writers on these websites 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" (in contrast to, say, the Watergate break-in). It's more about curiosity, speculation, dreams, and the hopes of Mac lovers.

These aren't traditional news sites - but then the first amendment doesn't apply just to news. We're dealing with information here, and the law protects those who publish truthful information, whether it's about the Watergate break-in or the iPod shuffle.

In my opinion, these sites have a right to publish information they receive and an ethical - if not legal - right to protect their sources. They also have a right to solicit information about upcoming Apple products. These sites are not covered by Apple nondisclosure agreements (although Apple should definitely consider putting them under NDA as a means of preventing future leaks).

Apple does have 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 - protecting trade secrets and prosecuting those who leak them.

The question is whether shield laws protect the publishers of these sites from disclosing their sources, and that has nothing to do with the medium (print vs. broadcast vs. Internet). It has everything to do with whether these sites actively or passively solicited information, if they somehow induced sources to violate their NDAs, and whether their knowingly publishing trade secrets violates existing trade secret laws.

I don't know how Nick dePlume and others go about their work, but as far as I can tell they don't actively solicit information or induce individuals to break their NDAs. They seem to simply provide a method whereby those who wish to share their information can do so - and anonymously at that, so these publishers may not even know who their sources are.

If Apple really wants to protect their trade secrets, they need to be more careful who they put under NDA, put these sites under NDA (Would the publishers agree to it for full information? Only one way to find out....), or discredit their leaks and these publishers with misinformation.

As long as Apple has a leaky ship, secrets are going to slip out, people are going to publish them, and the public is going to have some advance knowledge about the next iPod, PowerBook, or version of OS X.

Patch your ship, Apple, and keep your crew in line. Then you won't have to worry about Think Secret and others publishing your trade secrets.

Of course, that's part of the reason for these lawsuits. If Apple can compel these sites to disclose their sources, not only will they have stopped one leak, they will also give others under NDA a reason not to break their promises.