April 20, 2006 11:34 AM PDT

Apple argues for blogger records

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Judge Franklin Elia said Apple's internal investigation was essentially saying to its employees, "If you disclosed the information, you'll be fired. Did you disclose the information?"

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Rushing went so far as to mock a brief sympathetic to Apple filed by the biotechnology company Genentech, which argued that merely questioning employees represented too much of a burden to Apple.

Elia also hinted that the appeals court would revisit the lower court's order. "If we do nothing, the trial court's order goes into effect and there could be some damage," said Elia.

Apple attorney Riley said that the same rules should apply to the New York Times and the San Jose Mercury News as to bloggers, saying that trade secret claims trump any reporter's ability to protect his or her sources, based on legal precedents.

After recess, some of the sharpest questions from the judges were directed to Apple. "All you want...is the name of the snitch," Elia said. "That's what this case is about."

Riley disagreed, arguing that they were looking to uncover someone who committed a crime. Elia responded, "You shouldn't hire people you think are going to be (a) criminal."

Following the presentations of both sides, the court took the matter under advisement. "We enjoyed this," Rushing said. "The matter will stand submitted."

It's not clear when the judges will render their decision, but under California state law they have 90 days to make their ruling.

After the hearing, EFF lawyer Kurt Opsahl said, "It sounds like the court understood the important issues at stake here."

"The California Court of Appeals has a long history of protecting freedom of the press," Opsahl said. An Apple representative declined to comment.

The subpoena to Powerpage.org, the e-mail provider to one of the Mac enthusiast sites, is on hold during the appeal. PowerPage's creator, Jason O'Grady, has begun writing a blog for ZDNet, which is owned by CNET Networks, the publisher of News.com.

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6 comments

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Freedom of the Press VS Non-diclosure Contract
THREE FUNDAMENTAL ISSUES ARE AT STAKE HERE:

1. Freedom of the Press v. Legally binding non-disclosure employee contracts.

2. Free Speech v. Trade Secret Intellectual Property.

3. Public Internet Bloggers / Rumormongers v. Legitimate Professional Journalist of the Press. (equal? same protection under Constitution?)

Previous response that bears repeating...


Mr. Editor: Is CNET now the Judge & Jury in this case?


FREEDOM OF THE PRESS v. NON DISCLOSURE CONTRACT

Posted by: Llib Setag

Posted on: March 7, 2005, 12:36 PM PST

Story: Apple goes to the source. C|NET

THAT is the real issue before the Courts.

Does the California Constitutional freedom of the press outway the legal non disclosure contract signed by the Apple employees who leaked proprietary secret information to the Internet BEFORE that Apple information was released to the public by Apple?

If this was Microsoft/Intel/Sun/Adobe/IBM/Dell/HP,instead of
Apple,what would THEY be pursuiting legally?

What if an Microsoft employee (which also must sign a VERY long non-disclosure contract) gave the source code for the upcoming MS-OS to a technology rumor site and it was posted on the Internet BEFORE Bill Gates issued the new Vista OS to the public?

What would Citizen Gates & his Father / Attorney / Law Firm do?

Would CNET think they were behaving like Nixon?

To say ANY tech company, Apple or otherwise, is being NIXON when they are executing their legal rights is just being biased.
Nixon was a criminal prosuiting criminal acts during Watergate AND the President of USA. He knowingly directed criminal acts to cover up prior criminal acts.
Deep Throat knew this & thought that the country should know this too about their elected President.

Totally NOT this case. Apple is not being criminal by exercising their legal rights & by protecting their intellectual property. Apple employees who broke their legal non-disclosure contracts did so knowingly & so did Think Secret, etc.

So you comparison to Nixon WAS grossly unfair and inacurate.
Not the same case by a long shot...

AND to compare the likes of Think Secret rumormongers to the caliber of Woodward & Bernstein / Washington Post is a serious insult to W&B/Washington Post & ALL respected professional journalist - ESPECIALLY coming from a "CNET journalist".

Deep Throat was absolutely right in THAT case, but knowingly breaching a legal non-diclosure contract / committing a crime is not covered under Freedom of the press.

All Apple is attempting to do is enforce their legal right to prosecute their disloyal employees who break the Apple Non-Disclosure Contract by giving away trade secrets.

Why should they continue to be employed by Apple if they broke their legal non-disclosure contract?

Freedom of speech does not mean you can falsely shout FIRE in a movie theatre and start a stampede...THAT'S against the law. All
Constitution freedoms have caveats. America is a check & balance system of rights & laws.

Is CNET the same as Internet Rumor Sites or are they more like CNN?
Posted by Llib Setag (951 comments )
Reply Link Flag
Freedom of the press VS NDC
I concur with most of what you have stated. Had this been a drug company that an employee had released restricted company info about, most reasonable people would side with the drug company because they understand that it takes years of research and billions of $$ to bring a product to market. Apple deserves no less. It's their data, they should have the right to release it when and if they chose to do so. This other stuff about journalism and freedom of press is a crock and a smokescreen. It's not about journalism, it's about an employee who broke a NDC and is too much of a coward to own up.
Posted by trudancor (14 comments )
Link Flag
Freedom of the press VS NDC
I concur with most of what you have stated. Had this been a drug company that an employee had released restricted company info about, most reasonable people would side with the drug company because they understand that it takes years of research and billions of $$ to bring a product to market. Apple deserves no less. It's their data, they should have the right to release it when and if they chose to do so. This other stuff about journalism and freedom of press is a crock and a smokescreen. It's not about journalism, it's about an employee who broke a NDC and is too much of a coward to own up.
Posted by trudancor (14 comments )
Link Flag
Re: Apple vs The Press vs Apple vs The Law vs....
Indeed. A comparison between Apple and Nixon is incredibly unfair. At the moment, Apple are really only at the beginning of the proceedings.

Take the bloggers being journalists issue for instance. The precedent that will be set will either allow Apple (or anyone else) to compel them to reveal sources, should the court rule that bloggers are not professionals, OR encorporate them into the definition of professional journalists under the law, thus making them *MORE* responsible for complying to the rules & guidelines such as not printing anything that could be considered a trade secret.

Apple not only want a change to prevent this happeneing, they also want to see publisher and the internal source punished too. This is an issue that could take quite some time.

Also, to say that that America has a "check & balance system of rights & laws" is not strictly accurate. Law review commissions etc perform some checking and recommendations on balance, but:

- any system of laws is intended as reflection of society's view as a whole, not on what is right and wrong, but what should not be allowed, and what should.

- there are no rights implied. A right only exists if it is written in law (thus bloggers have no rights nor legal status past that of a person *unless* written precedent says so).

Whew. That was a quite a mouthful. Fact aside, my opinion: Apple should find its leak, and, if desired punish under breach of the NDA, but leave the journalism industry alone, be it professional or amateur. Its never going to be a fight it can win.
Posted by djcaseley (85 comments )
Link Flag
Illegal Fishing Expidition!
Illegal fishing expedition, outlawed by the 4th Amendment!

Obviously most of the information and evidence that Apple now holds about the leaks, is so weak as to mostly consist of conjecture, misinformation and other rubbish which would not hold up in any court of law under cross examintion by any including the average a brain dead public defender, with a 30 minute briefing!

Goody ,another reason to avoid all Apple's services or minority control freaked products!

Ah choices,to buy DRM'd locked down Apple crap from control freak central, or other cleaner PC's and competitors products!
Posted by heystoopid (691 comments )
Reply Link Flag
Conjecture?
Employee broke contract, provided illegally released informtion to a
blogger who KNEW it was illegally obtained because the were
AWARE of the contract being broken by the employee.


This is not conjecture. This is not about the little guy. This is
about a theif and his pawnshop.
Posted by Thomas, David (1947 comments )
Link Flag
 

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