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Ranty McRantsalot
Every so often something comes along that lets me get on my soapbox and go to town. (Yeah, I know, more than 'every so often'. Deal. :) )
Apple is currently in legal suits with four websites that published internal Apple documents about product projects. This has been turned into this amazing battle of rhetoric by both sides, and I'm really aghast at most people's tenuous grip on the basic issues... so I'm going to take a shot at it. (To make it even worse, there are currently two sets of legal actions taking place, and the media and most people seem to be trying to treat them as interchangeable. They're not.)
1) This is not a First Amendment issue.
Surprise! The First Amendment states, and I quote: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;". CONGRESS shall make no... Congress isn't making any law here that is violating free speech. No new free speech restrictions are being created.
Free speech, in a very legal sense, does *not* mean that you can say whatever you want, whenever you want. Ever hear of libel? Slander? Those are actionable, and yet it has been argued by some that they are trampling of free speech. Bull. Think about if it were you that was the target of such speech - would you think it was right? Of course not. Most people realize that free speech comes with a responsibility to speak truthfully. You're welcome to your opinion, but once you start spreading lies that can damage another party, you've just trampled on their right to 'life, liberty and the pursuit of happiness'. You'll notice that didn't need an amendment, it was considered core and prime enough to end up in a much earlier document, the Declaration of Independence. So here we have one right stomping on another, unalienable one. Oopsie.
We have *always* had restrictions of our freedom of speech, and justifiably so. When that right is used to the detriment of another who is acting appropriately, it is being abused. Anyone who tells you that the right is absolute is either deluded, ignorant of the law, or both. We have a right to speak our mind, we do not have a right to harm others.
Journalists should be held to even higher standard of truth. We trust them to bring us facts, and to inform us about things we need to know. Opinion pieces are important things to have in the public eye, definitely. Publish, speak, blog, or skywrite your opinion all you want - but don't try and pass it off as fact. Journalists and news sources can, and do, still get hit with libel and slander charges, and often, they stick.
All of this is irrelevant to the case at hand, however. Nobody is being sued for posting an opinion. This isn't, and never has been, a right to free speech issue. It has been a publication of trade secrets issue. Those trying to tell you otherwise are simply handwaving to distract you from the real situation.
2) This is not online journalism vs. traditional journalism.
I've heard it stated that "If this were the NY Times that published this, this wouldn't be happening." Again, bull. First off, the NY Times *knows* better than to go around publishing trade secrets without an overriding concern. Their editorial board is professional, and realizes that the right to free press is precious, and not to be abused. They know that there are limits to their privileges, and they run smack into other people's rights. If they had been so unprofessional and frankly, stupid, then I would fully expect them to be sued as well.
I've seen comparisons made regarding Salon, Slate and such, as evidence that this is 'new' vs. 'old'. Irrelevant. Those are news sites, and are afforded journalistic privilege. As has been shown time and time again, *the medium does not matter* when it comes to such issues. It won't now. This isn't about online vs. print, never has been. It's about whether a person can publish trade secrets of a corporation.
The answer is legally 'yes', *if and only if*: a) they fall under journalist privilege (which requires them to be a journalist, obviously), b) the information is demonstrably 'in the public interest'. In such cases, the public good outweighs the corporate need for privacy. This is a common sense idea: if anyone is acting against the best interests of the general populace in the exercising of their rights, than they are abusing those rights, and should be called on it. I even would champion protection for individuals engaging in b), but it has to be determined on a case by case basis. If an individual publishes confidential information and then fails the litmus test of 'in the public interest', they're screwed.
3) This is not a matter of the legalities of how the information was obtained.
This is where the two legal actions are being mixed the worst.
Three websites are being subpoenaed for their sources, and that's it. A fourth, in a separate suit, is being pursued for damages. What's that you say? Corporations can't be damaged? Wrong again. A corporation's strategies can directly affect their profitability and success in the marketplace. So, you counter, who cares about *corporations*, they're not *people*, right? You're right. But they employ people whose jobs can be lost, and their stockholders are people who have invested in that company. Those people are also affected, and no one should have the right to inflict damage on them, even by proxy, by publishing inappropriate and illegal content.
The sole site being sued for damages is being sued under tortuous interference, by solicitation of confidential information. This is, in fact, illegal. You cannot induce someone to provide you with confidential information, and publish it. The site in question has been known to do such solicitation in the past (and there is good suspicion of compensation for such information, putting it smack dab into illegality), and they may have done it in this case. They may not have. That's what the suit is about, to try and prove it one way or another.
One site is being accused of illegal and harmful actions in how the information was obtained. They are being sued for damages.
The other three (and their ISPs) are being sued for information to disclose the actual NDA-breakers. This is an important point. The sites and ISPs are not being held to blame for the leak, they are being required to provide assistance to solve what is, quite literally, a civil crime. Apple will then deal with the contract violators directly. (Don't agree with NDAs? Then don't sign them.)
The ruling regarding the three sites and their ISPs for the subpoena of information about their sources has *nothing* to do with how the information was obtained.
4) There is no slippery slope.
If Apple wins, in every case, there is no new precedent being set, no new slippery slope, *unless*:
a) The websites are ruled to be journalistic outlets *AND*
b) The information posted is found to be 'in the public interest' *AND*
c) Apple wins an injunction against said sites, and wins their damages case as well.
a) I don't believe that most of these sites are journalistic outlets... they are rumor mills. They don't report on news in the public interest, they try and ferret out the new products that Apple may or may not be producing. That's all. There's no greater good at work here, there are just ad revenues from hits. There are three things that define journalism in my mind: 1) editorial control (internal consensus of appropriateness of content), 2) rigorous fact-checking (internal consensus of truth of content), 3) public opinion (external consensus of success at #1 and #2). Regardless of their fact checking, (which isn't exactly what you could call rigorous,) all four sites have shown a failure of #1 right off the bat, by violating b).
What amazes me most is the number of journalists coming to the fore screaming that blogs *in general* should be given journalistic rights of secrecy. Think about it guys... you're diluting what it means to be a journalist to the point where it is meaningless. You'd think you'd want to protect your own livelihoods a bit more than that. My only conclusion is that those who are screaming the loudest are those that deep down aren't really sure that they themselves are worthy of the title journalist, and are afraid that they'll be exposed as less than professional. But that's just an opinion based on a hunch.
I believe what some are trying to point out is that *online* journalists should be given the same protections as traditional journalists. I wholeheartedly agree. Nobody, in my opinion, has given a compelling case that the sites in question can be considered journalists.
b) The information posted was not 'in the public interest'. This does not mean 'is the public interested', but rather 'is it information that the public needs to know to fulfill their pursuit of life, liberty and happiness and prevent harm to themselves'. Tobacco company documents detailing addiction rates and how to manipulate them? Public interest. Rollover studies on SUVs from inside car companies? Public interest. Internal design documents for possible upcoming products from a computer company? Not public interest. J-Lo's latest liposuction details? Not public interest. In cases where there is not an overriding public interest to consider, then intellectual property and privacy laws remain standing.
The fact is that you cannot simply print or post anything you want. You never have been able to. If you violate someone else's rights without a greater good at stake, then you are out of luck, sorry. This is how it *SHOULD* be, and thankfully is. If you publish something false about someone else, or post their intellectual property, you should *NOT* be able to hide behind a Shield Law and thumb your nose at them. That's just cowardly and unethical. That type of law has been misused, in my opinion, to provide cover for any sort of snooping that any hack calling themselves a journalist chooses to do. In my mind, it should only be allowed for stories that are absolutely and positively in the public interest. Several categories come to mind: anything to do with our government, at any level, short of national security issues; most items to do with publicly held corporations, except for those deemed trade secrets; health and safety issues. It should NOT cover stories involving people's private lives, or information that a company deems a trade secret, unless it falls under the above categories
c) Apple will likely win... but without a) and b), it doesn't matter as a point of law. It simply reaffirms that it is not legal to publish someone else's private material without responsibility for the consequences - something that we should all be concerned about in this age of vanishing privacy. Consider if a and b are found to be false... but Apple still loses. That precedent would make them, me, and you, all of us, fair game for any person who wishes to snoop on any subject, for any reason, and post their findings on the web. That's not free speech, that's ruinous.
Anytime you see a right in our society, ask yourself... what is the accompanying responsibility? If you don't see one, then you're simply not looking hard enough.
I am a strident supporter of transparency of government and corporations. I believe that the best democracy is one that is as fully informed as possible. I believe that granting corporations the rights of an individual was one of the biggest legal gaffes of the last two centuries. I believe that the best guard against abuses of power is vigilance. I also believe, however, that the public's thirst for meaningless information is just blood and circuses, and pandering to that desire only serves to weaken the valuable and necessary purpose of journalism. A free press is to be cherished, and honored... in turn, the members of that press need to act in an honorable manner and remind themselves that their purpose, like government, is not for their own betterment, ego, or bottom line... it is for the benefit of the rest of us, the people.
By accepting as one of their own any random person with a blog, they only serve to minimize their own purpose, and in turn, minimize the justification for journalistic privilege. That is the slippery slope that we need to be worried about, because journalistic privilege *is* a necessary part of our society. Posting internal documents of possible upcoming products isn't.
Apple is currently in legal suits with four websites that published internal Apple documents about product projects. This has been turned into this amazing battle of rhetoric by both sides, and I'm really aghast at most people's tenuous grip on the basic issues... so I'm going to take a shot at it. (To make it even worse, there are currently two sets of legal actions taking place, and the media and most people seem to be trying to treat them as interchangeable. They're not.)
1) This is not a First Amendment issue.
Surprise! The First Amendment states, and I quote: "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press;". CONGRESS shall make no... Congress isn't making any law here that is violating free speech. No new free speech restrictions are being created.
Free speech, in a very legal sense, does *not* mean that you can say whatever you want, whenever you want. Ever hear of libel? Slander? Those are actionable, and yet it has been argued by some that they are trampling of free speech. Bull. Think about if it were you that was the target of such speech - would you think it was right? Of course not. Most people realize that free speech comes with a responsibility to speak truthfully. You're welcome to your opinion, but once you start spreading lies that can damage another party, you've just trampled on their right to 'life, liberty and the pursuit of happiness'. You'll notice that didn't need an amendment, it was considered core and prime enough to end up in a much earlier document, the Declaration of Independence. So here we have one right stomping on another, unalienable one. Oopsie.
We have *always* had restrictions of our freedom of speech, and justifiably so. When that right is used to the detriment of another who is acting appropriately, it is being abused. Anyone who tells you that the right is absolute is either deluded, ignorant of the law, or both. We have a right to speak our mind, we do not have a right to harm others.
Journalists should be held to even higher standard of truth. We trust them to bring us facts, and to inform us about things we need to know. Opinion pieces are important things to have in the public eye, definitely. Publish, speak, blog, or skywrite your opinion all you want - but don't try and pass it off as fact. Journalists and news sources can, and do, still get hit with libel and slander charges, and often, they stick.
All of this is irrelevant to the case at hand, however. Nobody is being sued for posting an opinion. This isn't, and never has been, a right to free speech issue. It has been a publication of trade secrets issue. Those trying to tell you otherwise are simply handwaving to distract you from the real situation.
2) This is not online journalism vs. traditional journalism.
I've heard it stated that "If this were the NY Times that published this, this wouldn't be happening." Again, bull. First off, the NY Times *knows* better than to go around publishing trade secrets without an overriding concern. Their editorial board is professional, and realizes that the right to free press is precious, and not to be abused. They know that there are limits to their privileges, and they run smack into other people's rights. If they had been so unprofessional and frankly, stupid, then I would fully expect them to be sued as well.
I've seen comparisons made regarding Salon, Slate and such, as evidence that this is 'new' vs. 'old'. Irrelevant. Those are news sites, and are afforded journalistic privilege. As has been shown time and time again, *the medium does not matter* when it comes to such issues. It won't now. This isn't about online vs. print, never has been. It's about whether a person can publish trade secrets of a corporation.
The answer is legally 'yes', *if and only if*: a) they fall under journalist privilege (which requires them to be a journalist, obviously), b) the information is demonstrably 'in the public interest'. In such cases, the public good outweighs the corporate need for privacy. This is a common sense idea: if anyone is acting against the best interests of the general populace in the exercising of their rights, than they are abusing those rights, and should be called on it. I even would champion protection for individuals engaging in b), but it has to be determined on a case by case basis. If an individual publishes confidential information and then fails the litmus test of 'in the public interest', they're screwed.
3) This is not a matter of the legalities of how the information was obtained.
This is where the two legal actions are being mixed the worst.
Three websites are being subpoenaed for their sources, and that's it. A fourth, in a separate suit, is being pursued for damages. What's that you say? Corporations can't be damaged? Wrong again. A corporation's strategies can directly affect their profitability and success in the marketplace. So, you counter, who cares about *corporations*, they're not *people*, right? You're right. But they employ people whose jobs can be lost, and their stockholders are people who have invested in that company. Those people are also affected, and no one should have the right to inflict damage on them, even by proxy, by publishing inappropriate and illegal content.
The sole site being sued for damages is being sued under tortuous interference, by solicitation of confidential information. This is, in fact, illegal. You cannot induce someone to provide you with confidential information, and publish it. The site in question has been known to do such solicitation in the past (and there is good suspicion of compensation for such information, putting it smack dab into illegality), and they may have done it in this case. They may not have. That's what the suit is about, to try and prove it one way or another.
One site is being accused of illegal and harmful actions in how the information was obtained. They are being sued for damages.
The other three (and their ISPs) are being sued for information to disclose the actual NDA-breakers. This is an important point. The sites and ISPs are not being held to blame for the leak, they are being required to provide assistance to solve what is, quite literally, a civil crime. Apple will then deal with the contract violators directly. (Don't agree with NDAs? Then don't sign them.)
The ruling regarding the three sites and their ISPs for the subpoena of information about their sources has *nothing* to do with how the information was obtained.
4) There is no slippery slope.
If Apple wins, in every case, there is no new precedent being set, no new slippery slope, *unless*:
a) The websites are ruled to be journalistic outlets *AND*
b) The information posted is found to be 'in the public interest' *AND*
c) Apple wins an injunction against said sites, and wins their damages case as well.
a) I don't believe that most of these sites are journalistic outlets... they are rumor mills. They don't report on news in the public interest, they try and ferret out the new products that Apple may or may not be producing. That's all. There's no greater good at work here, there are just ad revenues from hits. There are three things that define journalism in my mind: 1) editorial control (internal consensus of appropriateness of content), 2) rigorous fact-checking (internal consensus of truth of content), 3) public opinion (external consensus of success at #1 and #2). Regardless of their fact checking, (which isn't exactly what you could call rigorous,) all four sites have shown a failure of #1 right off the bat, by violating b).
What amazes me most is the number of journalists coming to the fore screaming that blogs *in general* should be given journalistic rights of secrecy. Think about it guys... you're diluting what it means to be a journalist to the point where it is meaningless. You'd think you'd want to protect your own livelihoods a bit more than that. My only conclusion is that those who are screaming the loudest are those that deep down aren't really sure that they themselves are worthy of the title journalist, and are afraid that they'll be exposed as less than professional. But that's just an opinion based on a hunch.
I believe what some are trying to point out is that *online* journalists should be given the same protections as traditional journalists. I wholeheartedly agree. Nobody, in my opinion, has given a compelling case that the sites in question can be considered journalists.
b) The information posted was not 'in the public interest'. This does not mean 'is the public interested', but rather 'is it information that the public needs to know to fulfill their pursuit of life, liberty and happiness and prevent harm to themselves'. Tobacco company documents detailing addiction rates and how to manipulate them? Public interest. Rollover studies on SUVs from inside car companies? Public interest. Internal design documents for possible upcoming products from a computer company? Not public interest. J-Lo's latest liposuction details? Not public interest. In cases where there is not an overriding public interest to consider, then intellectual property and privacy laws remain standing.
The fact is that you cannot simply print or post anything you want. You never have been able to. If you violate someone else's rights without a greater good at stake, then you are out of luck, sorry. This is how it *SHOULD* be, and thankfully is. If you publish something false about someone else, or post their intellectual property, you should *NOT* be able to hide behind a Shield Law and thumb your nose at them. That's just cowardly and unethical. That type of law has been misused, in my opinion, to provide cover for any sort of snooping that any hack calling themselves a journalist chooses to do. In my mind, it should only be allowed for stories that are absolutely and positively in the public interest. Several categories come to mind: anything to do with our government, at any level, short of national security issues; most items to do with publicly held corporations, except for those deemed trade secrets; health and safety issues. It should NOT cover stories involving people's private lives, or information that a company deems a trade secret, unless it falls under the above categories
c) Apple will likely win... but without a) and b), it doesn't matter as a point of law. It simply reaffirms that it is not legal to publish someone else's private material without responsibility for the consequences - something that we should all be concerned about in this age of vanishing privacy. Consider if a and b are found to be false... but Apple still loses. That precedent would make them, me, and you, all of us, fair game for any person who wishes to snoop on any subject, for any reason, and post their findings on the web. That's not free speech, that's ruinous.
Anytime you see a right in our society, ask yourself... what is the accompanying responsibility? If you don't see one, then you're simply not looking hard enough.
I am a strident supporter of transparency of government and corporations. I believe that the best democracy is one that is as fully informed as possible. I believe that granting corporations the rights of an individual was one of the biggest legal gaffes of the last two centuries. I believe that the best guard against abuses of power is vigilance. I also believe, however, that the public's thirst for meaningless information is just blood and circuses, and pandering to that desire only serves to weaken the valuable and necessary purpose of journalism. A free press is to be cherished, and honored... in turn, the members of that press need to act in an honorable manner and remind themselves that their purpose, like government, is not for their own betterment, ego, or bottom line... it is for the benefit of the rest of us, the people.
By accepting as one of their own any random person with a blog, they only serve to minimize their own purpose, and in turn, minimize the justification for journalistic privilege. That is the slippery slope that we need to be worried about, because journalistic privilege *is* a necessary part of our society. Posting internal documents of possible upcoming products isn't.
Re: The law and why people are ticked...
1) No one has been able to argue to my satisfaction that the sites in question are journalists. If you're going to claim you're a journalist, you need to meet basic guidelines of professionalism. It isn't about if you slap a 'Vol 1, Num 1' on the top, any idiot can do that. The lack of definition means that anybody, anywhere, can publish whatever they want on the web to their blog, and call themselves a 'journalist'. That doesn't even pass the common sense test. The clause you quote explicitly states that employees of 'newspapers, magazines and other periodical publications' are shielded. A periodical publication is... ? I post to my blog semi-regularly. The entries are dated. Does that make me a journalist? Cool! Ed sucks goats! I have proof! And I don't have to give you my sources! ;) Insane? Yes. Now, could I get away with that if I were handing out a piece of paper on the street corner? Under CA law, you'd still be able to sue me for defamation. The same laws should apply offline and on.
The CA Shield Law is vaguely written. Poorly written laws regularly get interpreted differently by different judges. I'm glad to see some basic common sense getting used here.
2) Many people are trying to assert that this will have nation-wide effects. It is a CA ruling in a CA state court, as you point out. It may very well be that this ruling is against the spirit of the Shield Law, but it is within interpretation of the language. If the CA legislature decides it needs tightening up to satisfy this situation, then they're welcome to.
Re: The law and why people are ticked...
Re: The law and why people are ticked...
1) The words 'periodic' and 'publication' are so inclusionary as to be essentially meaningless, and while it is a precise definition, it is so broadly accepting that it is essentially useless in providing intent or guidance.
2) The phrase 'periodic publication' isn't one that has a meaningful relationship to the profession of journalism, and the lack of provided definition of relevance leaves the clause to be too vague to provide any useful intent or guidance.
I think we're in agreement here, the clause is poorly written.
Re: The law and why people are ticked...
And even if a prestigious reporter gets sued for defamation, I doubt "I have proof from a source I can't reveal" would work as a defense.