My work experience includes the broadcast, print and online mediums, so I can’t say that any of this applies to me, but with the growth of so-called blogging, the issue is becoming more and more important. Apple’s lawsuit against the popular Mac-rumor site, Think Secret, simply means that this is an issue that cries for a solution, even if it has to come from the courts.
In preparing material for the next episode of The Tech Night Owl LIVE, I talked about the matter with two of our guests. One important point came up, and that is that if a story delivering secret information about the Mac mini and iPod Shuffle appeared in The Wall Street Journal or a similar mainstream publication, Apple wouldn’t dare file a complaint. The same can be said for CNET, although most of its content appears online. A journalist’s privilege, the refusal to disclose sources for a story, wouldn’t be an issue, and besides those places have a team of lawyers on hand or on call to deal with such matters.
Apple’s opening in the case of a rumor site is no doubt the assumption that its editor and publisher, Nick Ciarelli, isn’t a real member of the press. This opens a very serious issue. Let’s for example, compare Ciarelli’s site to, well, CNET. Both publish news and commentary content online, and both accept advertising. The difference, of course, is that CNET is much, much larger and has a greater depth and breadth of information. But where’s the real line of demarcation? Is Ciarelli less of a journalist because his company is small and CNET is large? Should he be taken less seriously because he is a teenager?
After all, how old was Steve Jobs when he and Steve Wozniak founded Apple? What about Bill Gates? Lots of brilliant young people have been doing marvelous work in the computer business over the years. Let’s not forget StuffIt was originally created by a 15-year-old high school student, and the list goes on and on.
To some, Ciarelli’s site is just another blog, but that goes against the common definition of the term, which is a personal Web site that essentially serves as an online diary. But even the question of the status of a blog is fraught with controversy. Is the author of a blog entitled to the same First Amendment rights as a more traditional journalist? Lest we forget, bloggers originally broke the news that those documents about President Bush’s military service that served as the cornerstone in that CBS News report were fake. In that instance, the bloggers were actually investigative reporters.
And it’s not that those “traditional” journalists aren’t facing threats. Over the years, reporters have been sent to jail because they refused to reveal the sources for some of their stories. It’s not that I expect to happen to Nick Ciarelli. In his case, I suspect Apple is primarily on a fishing expedition to discover the names of the person or persons feeding all this stuff to rumor sites. I do not think Apple just wants to close down rumor sites, although I suppose that’s a possibility.
But before you regard Apple Computer as the major offender, be assured that it’s not the only computer company going after bloggers publishing supposedly secret information. According to an eWeek report, “In a Jan. 18 letter it said was issued on behalf of Microsoft, the law firm of Covington & Burling asked the publisher of tech-enthusiast site Engadget.com to remove screenshots of a forthcoming Microsoft operating-system release known as ‘Windows Mobile 2005.'”
Microsoft claimed that the material contained “proprietary trade-secret information belonging to Microsoft.”
Now before I go any further, although the folks who run that site consider it a blog, it doesn’t really fit into that category, since it publishes news, commentary and carries ads. Or maybe I got it all wrong, which pretty much makes just about all Mac sites blogs.
In any case, here we have another case of Microsoft following Apple’s lead, although it is now reported that the issue has been resolved. Is this the start of a trend? Are other technology companies going to jump into the game in search of so-called bloggers that are publishing alleged proprietary information about possible new products?
More to the point, does this amount to a true threat against free speech? Well, on the one hand, a company that uses confidentiality agreements to keep information about new products under wraps has the perfect right to go after people who violate those agreements? In fact, the agreements will, as a rule, detail potential penalties for violating those terms. Certainly anyone who signs such an agreement and then breaks it must expect legal repercussions. But what about the news resource, blogger or whatever that publishes information about the alleged new product or trade secret? Can the blogger be compelled by the courts to reveal the names of its sources, despite the promise of secrecy? Can the blogger be forced to pay damages because it published those trade secrets, even if it received the information from a third party?
Of course, one of Apple’s arguments is that Nick Ciarelli somehow encouraged folks to violate nondisclosure contracts, though I can’t see how. He’s not, after all, offering huge financial incentives. In fact, he didn’t even have enough money to pay his attorney, who has agreed to work pro bono on the case.
These incidents all go to the core of the free speech argument. But it won’t be Apple or Microsoft who get to decide the rights of a blogger. The case of Apple versus Think Secret may set some legal precedents, but that’s up to the courts to decide. I’m sure anyone involved in Web publishing is going to be extremely interested in how it all turns out, but after possible appeals and all, this is one issue that could take years to resolve.