The panel is moderated by Cathy Kirkman.
The issues are manifold. Privilege, anonymity, the line between bloggers and journalists (assuming such a line exists), etc.
There was an oral argument in the Apple v. Does appeal yesterday. In December of 2004, Apple filed a lawsuit against a group of Does who they believed had misused their trade secrets. In the course of that litigation, they issued subpoenas to the host of various Apple news sites. The Does moved for a protective order; the trial court denied it; the Does appealed, and oral argument was yesterday. It was an unusual format — in the initial part, the Does argued, followed by their amicus, then Apple, and their amicus, the court took a 30-minute recess, then came back for more argument. “The First Amendment protects journalism, not journalists.”
There will be a ruling within 90 days.
At the same time that Apple filed against the Does, they filed against my client, ThinkSecret, which turns out to be run by a Harvard freshman. They sued not only for the identity of the leaker, but also for trade secret infringement. Apple has a lot of nerve to file this suit. If this had been the NY Times, everyone would have called it a scoop. They didn’t disclose source code, they didn’t do anything that would help a competitor much — they just talked about product launches before they happened. Trade secrets don’t protect the timing of release of information to the media. They thought the sites would just fold. It’s lucky the EFF exists.
We told Apple there was a clear First Amendment bar to the suit; we filed an anti-SLAPP motion. Bartnicki is on point.
In our half, Apple has backed down a bit but hasn’t dismissed yet.
Trade Secret Owner’s Perspective: Marc S. Martin
I have to be careful — my firm represents Apple, though not in this matter.
As a general matter, the issue about a company’s desire to control the release of trade secret information is fairly critical. Controlling when they’re released can be critical. There can be significant consequences springing from the timing and circumstances of the release of proprietary information. I agree that there is a lot of case law that speaks of matters of public concern, and how the First Amendment can trump. But even in Bartnicki, the court said it didn’t apply to private matters (like trade secrets).
Q: Is this a question of what’s a trade secret, or is it a valid trade secret against the First Amendment? A better hypo might be the Mike Lynn Cisco situation. A: Specs, in a competitive industry, can be importnat if the product is going to be disruptive. What’s the difference between publishing and giving it to the archrival in advance? This is private proprietary information. If it’s a whistleblower circumstance, or there are issues around lawfulness of corporate conduct, or a public health issue, it might be a different story.
Media Law Perspective: Bruce E.H. Johnson
I think there’s a sliding scale here. Imagine a year ago you had some people talking about the Sony rootkit. That’s a matter of public concern, for sure. Is it purely private, or is a matter of public concern.
Q: Does the nature of dissemination matter? Is “Hey, look at this leaked thing!” different from a serious discussion of the information? A: The problem is that judges know nothing about technlogy. “We’re talking about people who, instead of getting computers for their eighth birthdays, got briefcases.” The courts have recognized that established media outlets distribute matters of public concern, since you’ve got to be if there’s an audience. The Washingtonienne case is relevant — Wonkette picked it up, and there were problems.
The $30,000 issue is that the First Amendment protects the press, but we must define the press eventually.
Kurt: Why not use the Shoen test? There are some weird sheild laws out there — Alabama doesn’t include magazines, for example. But for the purposes of the First Amdendment, it’s everything that’s a vehicle of free expression.
Q: What about the various levels of privilege? A: Freedom from subpoena is qualified; confidential source revelation is usually absolute as a statutory amtter, but qualified as a First Amendment matter.
Kurt: The California constitution provides additional help to journalists. It’s fairly broad, but has not yet been fully tested.
Q: Does the case law equate privacy protection and trade secret protection? Could you elaborate on the public concern test and how that plays out for 1A purposes? Is it a balancing test that everybody must engage in?
A (Bruce): “Public interest and concern” is what gets us into Sullivan. Then we’ve got Dun & Bradstreet. If you don’t have that, you drop down to English common law circa 1890, placing the burden of proving truth on the defendant. (Terry): That’s the interface between bloggers and mainstream media. Everybody has to do the same analysis. Is this private and salacious? This is what we look at when we do libel clearance. This also goes the other way; any of us automatically have a 1A right attached to our dissemination. The little people don’t have the resources to fight against the big guys. The law is used as a tool of oppression.
Q: Do the old definitions of public concern make sense in the blog context, where there are intense communities that care about things everybody else doesn’t care about? A (Terry): Bunner sheds some light on this. Bartnicki applies. It just has to be of concern to some large enough group of people. (Marc): This area is uncertain, and there’s risk. Who knows how the analysis will come out?
Bruce: Try to approach a situation where you want these protections as if yo’re a journalists. Make a transformative use, not a gotcha. If Jessica Cutler had talked about Washington law and politics and the typicality of power- and sex-obsessed more, she’d have a better case, arguably.
Q: Wasn’t the EFF in Bunner? Didn’t you say posting code was political speech? [He'd said that this isn't like posting code earlier.] A(Kurt): [He discusses Bunner a bit.] About small communities, small offline publications get full protection, even if they have relatively small circulations.
Q: What should the recipient of a tip do? A(Terry): Journalists do this all the time. The key is whether the journalist does anything wrong in OBTAINING the information. If it’s source code or something, it’s a very tough call.
Q: Journalists are third parties; bloggers are personally involved, right? A(Bruce): Newspapers have editors. Bloggers don’t.
Q: To what extent would a commercial speech analysis invade, if it’s a corporate or corporate-affiliated blogger? A(Marc): Posting privileged information is obviously verboten.
Q: What about anonymity? A(Kurt): You have a 1A right to speak anonymously. There’s a test — there are variations, See’s Candy, Dendrite, etc.
[There's a discussion of getting the identities of anonymous speakers by civil process and in the course of a criminal investigation.]
Q: Does the result of the Apple case dictate national policy for blogs? A(Kurt): It’s persuasive authority within California; other states may look at it. (Bruce): So long as there are relatively few cases, this will be an important one.
Q: Is this part of a trend? A(Kurt): From a legal perspective, there’s no distinction between putting info on a website and publishing via blogs. And there’s not much of a difference betwene that and traditional publishing. Is there “law of the blog” — is this “law of the horse“?
Bruce: Take a look at your insurance coverage. Should you be buying the same sort of insurance that the mainstream media does?
Q: If every goofball has a blog, how do we insure? A: There are products out there that help with that. If you’re an individual, check your homeowner’s or renter’s insurance policy for defamation coverage. Consider umbrella policies.
Q: You at EFF represent those who don’t have insurance. Talk about what EFF is and where you get your funding and whether you have enough resources. A: The EFF is member supported, under-resourced to do all of the cases they want to, etc. [Go give them money.] Bruce: Reporters Committee for the Freedom of the Press is great, too.
Q: What about the proposals for a national shield law? A: Bruce: After the Judy Miller problem, there were various proposals. The controversy turns on whether bloggers are protected, and the latest draft (Luger’s) doesn’t include protection for bloggers. But those bills won’t get past the White House in this administration anyway.
Q: Back to insurance. Could my blog host offer me insurance? Can Yahoo and Aetna talk? A: [That would be cool.]
Q: How should bloggers think of themselves as public figures? A(Bruce): This is really interesting online. Classically, it’s “unique or special access to the media”, so they could talk back against the defamation. The internet has leveled that playing field a lot. As a consequence, a blog may have the same reach as a newspaper. Can’t wait to see a blogger as plaintiff.
Q: Couldn’t the flip side happen, too, so that nobody is any more public than anyone else? A(Kurt): Maybe a Technorati search will determine whether you’re a public figure. Bruce: Look at MySpace — different public/private boundaries in the next generation.
Q: How about territoriality? A: The jurisdiction cases are all over the map — they’re website cases. The general rule is that unless you’re specifically targeting that state, you shouldn’t be sued in that state. Overseas, the rule may not be so simple.
Q: How about the interactivity issue? Do comments make a site interactive? A(Bruce): The early jurisdiction cases focused on passive versus active websites. These all turn on commercial transactions. Comments aren’t the same sort of activity.
Q: What’s next? A(Kurt): Pin down the federal constitutional protection, then the question will be individual for each state’s shield laws. (Bruce): The conference materials include what we did in WA with the shield law, which is designed to be media-neutral but not cover all bloggers. That bill nearly got through. I’m hoping it will be reintroduced next year. There are bills in many other states.
Q: Why did the bill die? A(Bruce): USAA, an insurance company, was eager to get back at the media, so they hired a lobbyist who kept it bottled up. Also, the definition of bloggers was very tough. It’s hard to create a privilege that applies to everyone — you’ve got to cabin it.
Q: Why isn’t a 13 year old on MySpace capable of journalism under certain circumstances? A: She is, sometimes. It’s like a student newspaper.
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