Breathe Easy, Anonymous Apple Whistleblower: Bloggers can shield sources

A California state court of appeals rules against Apple Computer Inc., deciding that bloggers can make use of shield laws designed for journalists. The decision, in legalese:

Apple Computer, Inc. (Apple), a manufacturer of computer hardware and software, brought this action alleging that persons unknown caused the wrongful publication on the World Wide Web of Apple's secret plans to release a device that would facilitate the creation of digital live sound recordings on Apple computers. In an effort to identify the source of the disclosures, Apple sought and obtained authority to issue civil subpoenas to the publishers of the Web sites where the information appeared and to the email service provider for one of the publishers. The publishers moved for a protective order to prevent any such discovery. The trial court denied the motion on the ground that the publishers had involved themselves in the unlawful misappropriation of a trade secret. We hold that this was error because (1) the subpoena to the email service provider cannot be enforced consistent with the plain terms of the federal Stored Communications Act (18 U.S.C. §§ 2701-2712); (2) any subpoenas seeking unpublished information from petitioners would be unenforceable through contempt proceedings in light of the California reporter's shield (Cal. Const., art. I, § 2, subd (b); Evid. Code, § 1070); and (3) discovery of petitioners' sources is also barred on this record by the conditional constitutional privilege against compulsory disclosure of confidential sources (see Mitchell v. Superior Court (1984) 37 Cal.3d 268 (Mitchell)). Accordingly, we will issue a writ of mandate directing the trial court to grant the motion for a protective order.

Winning appellant Jason O'Grady, proprietor of O'Grady's Power Page, takes a bow on his blog. Pseudonymous co-appellant and Apple Insider editor Kasper Jade's declaration in the case. Apple was trying to get the identity of a Doe or Does (presumably employed by Apple) who had leaked information about a FireWire audio interface codenamed "Asteroid" to O'Grady, Jade, and Apple Insider web host Monish Bhatia.

Better legal minds than mine can weigh in on what this decision actually includes and settles (Volokh says the court got this absolutely right), but I'm confortable with the conclusion that a civil litigant can't force this kind of disclosure. So you're protected from Chairman Steve. Uncle Sam, on the other hand…

Comments

[Hott Tipp]

Uncle Sam, on the other hand...

Journalists are supposed to be able to get info from Uncle Sam using FOIAs (backed by an injunctive lawsuit if neccessary). These magical requests cannot be used against Apple, but they work against the government.

If you have any recent graduates of the Medill School of Journalism then they should be able to help you with the FOIA request because I can see from GOOGLE that that great school does indeed teach about this powerful, new journalistic tool.

[Michael Heinz]

WTF?!?!

"Whistleblower"? In what sense does leaking advance information about Apple products make you a "whistleblower"?

I'm sorry, but this is a travesty. Someone violated their employment contract and actively worked against the interests of their own employer for nothing more than money or vanity and you want to hang a medal on their chest that reads "whistleblower".

And you wonder why people have no respect for the press?!?

[Mo]

Michael,
So the person, if identified deserves to be fired. At the same time, Apple has no right to force a third party to tell them who informed them.

Freedom of speech also includes freedom of silence.

[Michael Heinz]

1. That's still not "whistleblowing".
2. I await with bated breath your defense of other forms of abetting crime - such as driving the getaway car.

The last time I checked refusing to divulge knowledge of a crime is, itself, a crime. Moreover, the first ammendment does not protect commercial speech to the same degree as political speech. If reporters can be compelled to divulge their sources in the Plame incident I see no reason a random HTML jockey can't be held to similar standards.

[Dave W.]

other forms of abetting crime - such as driving the getaway car.

No crimes have been alleged in this case.

The last time I checked refusing to divulge knowledge of a crime is, itself, a crime.

No person . . . shall be compelled in any criminal case to be a witness against himself . . .

[joe]

Actually, Michael, that last bit is pretty easy.

1. There is no federal journalist shield law, while there is one in California. The Plame case is in federal court, the Apple case in state court.

2. The shield privilege is not an absolute right, but a compelling interest to be weighed against other public interests. Measured on its own merits, allowing high public officials to dish misleading crap as part of a political fight is not very compelling; while protecting the cover of covert operatives working on stopping nuclear proliferation is an important public good.

[Sandy]

The violation of the contract between Apple and its employees was a civil matter. So it's not suppressing knowledge of a crime not to identify someone who did that. It may get you a flaming bag of dog poop with "Love, Steve" on it, but it isn't worthy of subpoena enforcement.

...until Congress says it is, like with your violation of your contract between you and the RIAA member whose music you used in an unapproved manner.

[Michael Heinz]

/There is no federal journalist shield law, while there is one in California./

Actually, Joe - that helps explain it. I still think Cavanaugh's use of the word "whistleblower" is a gratuitous attempt to spin someone's self-aggrandizement as a civic virtue, but that's a different matter.

[Dave W.]

Sandy,

There are criminal trade secrets statutes, I believe. I remember a federal trade secret / industrial espionage law being passed in the mid-90s, for instance and I don't think this is the only one.

I believe the received wisdom is that not much prosecutorial effort is spent on criminal prosecution of intellectual property because companies can usually take care of themselves.

It is possible that the adverse outcomes Apple is getting thus far in this suit will lead it to lobby for law enforcement attention in the future. It is hard to say whether that will help them with the specific problem they are having here. It is is also hard to say whether a shift to crimninal (as opposed to civil) enforcement of intellectual property suits would be a good thing for business, civil liberties, etc.

I think the problem Apple has here is that its "trade secret" doesn't sound very "trade secrety." Normally, when a person hears trade secrets, you would think that secret code for this recording software is getting leaked. Instead, it sounds like a product release schedule got leaked. I think most people would say it is okay to invade privacy when a big enough theft occurs, but this strikes me as snooping around in connection with sort of a petty theft.

Whatever rules they have for privacy and bloggers and journalists and leakers and mischeif makers in either the civil or criminal contexts, the rules should differentiate between big thefts and small ones.

[Michael Heinz]

Sandy,

You're right that contract law is not criminal law, but I'm pretty sure there were subpoenas involved.

Also, you might want to consider that that bag of flaming dog poop could be considered vandalism, intimidation, harassment, disorderly conduct and, if the bag manages to set fire to anything else, arson.

[Michael Heinz]

Dave,

I agree that, in an ideal world, we would have some rule to distinguish between "serious" leaks and "petty" ones - and especially leaks which serve the public interest and ones that do not - but I have no idea how that would work in practice.

[Dave W.]

Well, here is one possible way: FRCP 45 excerpt:

"On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it . . . subjects a person to undue burden."

Judge has some discretion here, it would seem, to tell Apple that they are being a bunch of crybabies (if that is really the case here) under this subpoena law, or a corresponding state provision if one exists.

[thoreau]

Dave-

Can proprietary info in the wrong hands be considered stolen property in a legal sense? (Yes, Michael Heinz, I'm well aware that you consider it stolen property in a moral sense.) If so, could the blogger who got the info be charged with possession of stolen property? Could he be subpoenaed and asked under oath who gave him the stolen property?

Mind you, I'm not asking whether this would be a wise use of the court's time, I'm just asking whether it's allowed. I like the distinction you draw between big leaks and small leaks. In principle a bad thing is a bad thing, but in practice some bad things are worse than others and courts have to prioritize finite resources. As I understand it, he didn't leak detailed technical specs that somebody could use to produce a competing product. Instead, he basically announced that Apple is working on ways to develop audio content. That's right, folks, the people who brought you the iPod are developing technologies related to audio content. I'm sure you're all shocked to hear this!

Apple is, of course, free to define their self interests however they want, but the rest of us are having a tough time figuring out how badly they're hurt by this announcement. If anything, creating buzz about innovations coming down the pipeline sounds like a good thing for the company. They are, of course, free to disagree and punish employees who violated the contract (if they can identify those employees), but if nobody else has any idea how they were harmed then maybe it isn't worth the court's time.

[joe]

"There are criminal trade secrets statutes, I believe. I remember a federal trade secret / industrial espionage law being passed in the mid-90s, for instance and I don't think this is the only one."

Dude, I think you're taking those ads with the iMacs and the tanks waaaaaaayyyy too seriously.

😉

[Dave W.]

Can proprietary info in the wrong hands be considered stolen property in a legal sense? (Yes, Michael Heinz, I'm well aware that you consider it stolen property in a moral sense.) If so, could the blogger who got the info be charged with possession of stolen property?

"Theft" of trade secrets is a civil wrong under the laws of all 50 states and US federal law and canada law and the law of most places. Although I hestitate to make blanket statements as far as what all these jurisdictions require and provide, I can say that theft of trade secrets usually has its own dedicated written statutes (it is not merely court made law) and does not usually require any sort of attendant theft of physical property. Tone quotes around "theft" here because trade secret theft is not like theft of chattels because the theft usually doesn't deprive the owner of the use of his secret info (see jefferson's famous quote about fire and tapers). I think "misappropriation" is often the word used in a state's statutes.

Practical Application: In your work you have probably been called upon to sign a non-disclosure agreement (NDA) at some point or another. Althought these important, pervasive agreements are seldom litigated, the tort of trade secret misappropriation is key to these agreements and the trust that managers are willing to place in them.

Some gloss: I seem to remember some case in the 90s where the tort of "conversion" of trade secrets was considered separate from the tort of infringement / misappropriation of trade secrets, but I can't remember what the distinction was or why it was important. Maybe the distinction was whether tangible property (eg, a floppy diskette) was stolen with the information and the difference had to do with where the suit could be brought, but that is just a guess. However, none of this convesrion gloss undercuts the basic idea that you can commit a tort merely by memorizing and later publishing a company's secret info, even if you steal no disks, drawings or documents.

Could he be subpoenaed and asked under oath who gave him the stolen property?

Good question. Not sure anybody fully knows the answer. Here is a hypothetical dialogue to show how these things often play out:

Plaintiff (Apple): Defendant, who gave you the stolen property?

Defendant: I will not answer on the grounds that it might incriminate me.

Plaintiff: But this is a civil suit.

Defendant: Yes, but there are laws on the books that could be used to fashion a criminal suit against me. Are you promising me that there will be no criminal suit on this ever?

Plaintiff: First of all, you know I am in no position to make any promises on behalf of the John's of the world. Those guys do what they wanna do. Second, even if I could make such a promise, I never would. You belong in jail as far as I am concerned.

Defendant: Than I am going to maintain my position of taking the Fifth on this.

Judge: Defendant is allowed to take the Fifth. Move it along, Plaintiff.

Plaintiff: Okay, but can I at least tell the jury that defendant took the fifth? Can I tell them that they should assume bad things about defendant because he invoked the fifth in this civil suit? I mean he should be talking if he was a good person, juries understand that . . .

Judge: Let me break in here, if I may, Plaintiff. As counsel for both parties understands, the rules on whether adverse inferences may be drawn in a civil suit based on an taking the Fifth is a complicated issue everywhere it comes up. If you would like to make a motion in limine, then you can submit an opening brief on this issue and I will decide it b4 we go to trial. My practice is to allow replies and sur-replies, so there will be a lot of briefs.

Plaintiff: I would like to make such an in limine motion.

I am not sure where it goes after that. Like most cases, mine settled contractually long before trial. I think the short answer is: ya win some ya lose some.

I like the distinction you draw between big leaks and small leaks. In principle a bad thing is a bad thing, but in practice some bad things are worse than others and courts have to prioritize finite resources.

I am not worried about Apple hogging the resources of the civil court. Apple pays for that and will not tend to overgraze too bad (notwithstanding the hype they feed you about the plight of the civil defendant, T.). However, if the upshot of this Apple case is that trade secrets become criminal case routinely, then what matters is who has the prosecutor's attention. I would h8 to see justice in this area becoming contingent on that. People pay for prosecutors, too, but that is accomplished in very subtle ways and doesn't always work out as just.

[Dave W.]

http://my.execpc.com/~mhallign/crime.html

Here we go. I remember having libertarian qualms about this law at the time. Doesn't seem to have lead to the downfall off the republic yet though. I think I did a lunch presentation for my law firm.

But what I think Mr. Cavanaugh needs to realize is that the best way to figure out whether Tim McVeigh had accomplices still at large would be to FOIA the videotapes from the vicinity of the Murrah Building. When he gets those, I will, with great good nature, nickname him "SCOOPS." It's not going to be good for the Clinton campaign, but time is of the essence if he wants to use his journalist powers to prevent a tragedy.

[thoreau]

Dave-

Thanks for the info. I would also hate to see trade secrets cases become criminal cases on a routine basis.

[Dave W.]

Thanks for the info. I would also hate to see trade secrets cases become criminal cases on a routine basis.

I wonder whether that scary trade secrets law from the 90s is used more often to: (1) go after trade secret burglars (hurting them); or (2) as a basis for trade secret burglars to plead the fifth in civil suits (helping them).

Unintended consequences, law is hard, blahblahblah.

[David McElroy]

Why do people insist on saying this is a case about "bloggers"? The sites in question are simply online news magazine. They existed before the term "blog" came into being. They're no different from any other publication which doesn't print on paper, such as Salon or Slate.

[Michael Heinz]

What's the difference, David?

That's the problem with laws that give the "press" special privleges. In an age where anyone who can spell "HTML" can publish, whether you call it a "blog" or a "news site" is a distinction without meaning. In this age everyone is the press.

[thoreau]

That's the problem with laws that give the "press" special privleges. In an age where anyone who can spell "HTML" can publish, whether you call it a "blog" or a "news site" is a distinction without meaning. In this age everyone is the press.

Michael-

You could always privilege the activity, not the person. Under such a system, putting info out there for the whole world could be treated differently than secretly giving info to a rival company.

We can debate about whether and/or when such a privilege would be a good idea. But let's put aside the whole notion that the notion of a press is meaningless when everybody is the press. Just because everybody can do it doesn't mean that everybody is always doing it.

[Michael Heinz]

Thoreau,

Such behavior could still be effective industrial sabotage - if nothing else, you could "osborne" the target company by leaking it's development plans in advance; similarly, you could destroy a company's value by revealing it's trade secrets - for example, by publishing the formula for Coca Cola so that it could be easily imitated.

And, sorry, I disagree - fundamentally we have changed the meaning of the word "press" - as I said, we are all reporters now.

[thoreau]

Michael-

I agree that it would be a bad idea to give any and all disclosures to the press (whatever form the press may take) a free pass. I wouldn't support such a thing. Whatever the scope of protection should be for people who tell things to the press, clearly it should not be unlimited.

My only point is that the existence of the blog does not render press protections obsolete. You can still protect an activity without giving blanket protection to people who sometimes engage in it. You can make the protection contingent on their actions rather than their identity.

[David McElroy]

Michael, you seem to have made an assumption about what I said that wasn't there. I was merely making the point that this wasn't a case about bloggers. There isn't (and shouldn't) be a legal distinction between a news site and a blogger, but there IS a difference in what they are. I see no reason to use the wrong word here.

To address your point, however, the problem is that the "press" shouldn't have any right that any other person doesn't also have. The press and public should have identical rights about what is allowed to be said or published. (The only time I can think of when the "professional" press might have additional privileges would be when there are limited numbers of slots available to cover events. It then becomes a judgment call about who should get passes. That's a practical matter, not a legal one, though.) As an ex-journalist, I can't imagine that I should have had a right (as a reporter or editor) that I don't have now as a non-journalist.

I don't really have a strong position on the central issue of whether Apple should be able to go after people who help disseminate so-called trade secrets. Although I love the company and its products, I generally take the position that information disclosure shouldn't be punished when done by someone who doesn't have a contractural responsibility not to publish it. On the other hand, I would support the company's right to go after whoever broke a confidentiality agreement. I just can't see that chilling free speech (by going after a third party) is a legitimate way to do it.

[Deus ex Machina]

All the more reason we should be glad that Microsoft won the platform wars. For all the bitching people do about Microsoft being a monopoly, they are light-years behind Apple when it comes to anti-competitive behaviour. Hell, Apple went to court to prevent other companies from making GUIs! And their efforts to lock users out of their own machines is legendary. You had to purchase a special screwdriver just to be able to open the original macs-and they're ready to do the same with the iPod (just Google iPod and expensive batteries).

[joshua corning]

I'm sorry, but this is a travesty. Someone violated their employment contract and actively worked against the interests of their own employer for nothing more than money or vanity and you want to hang a medal on their chest that reads "whistleblower".

I am all for contract law but compeling a third party, who did not enter into said contract, to act against its own intersts to enforce it is hugely wacked.

And to say nothing of the fourth party (me and other tax payers) who have to foot the court bills.

[Dave W.]

All the more reason we should be glad that Microsoft won the platform wars. For all the bitching people do about Microsoft being a monopoly, they are light-years behind Apple when it comes to anti-competitive behaviour.

Antitrust 101, Deus: whether your behavior depends on how large your marketshare is. In view of the way the market has historically split between Apple, Microsoft and the fringe contenders, your analysis is way wrong.

[Don't Believe The Hype]

And to say nothing of the fourth party (me and other tax payers) who have to foot the court bills.

The litigants pay court costs.

[R C Dean]

I am all for contract law but compeling a third party, who did not enter into said contract, to act against its own intersts to enforce it is hugely wacked.

Third parties get sucked into contract disputes all the time, especially when they do business with one of the disputants, and doubly especially if the business they do with the disputant is itself a breach of the disputants duties under the contract.

That's why you do due diligence before you do business with someone, to make sure they aren't dirty.