Checks and Balances

Over the last couple months there has been much discussion into the Apple lawsuit against one John Doe regarding a yet unconfirmed future product, codenamed “Asteroid”. In an attempt to find the individual responsible for the ‘leak’, Apple is seeking information on the said individual through subpoenas and trade secret suits against several online websites; including ThinkSecret and AppleInsider.
My understanding of the argument defending these sites is that these sites are news outlets and thus should be under the same protection that traditional journalists receive in regards to disclosing informant information. The EFF, the group defending the sites, has a article up on why they fight Apple’s subpoenas. In that article they reference “Deep Throat”, the informant involved in the 1972 Watergate incident. This is where I believe the argument against Apple is critically flawed.
Apple is a public company. They have investors to protect, customers to woo, and employees to look after … and Apple does this by leading in the computer and electronics market. Their success depends on beating the competition to the market – hence the reason for all the money and resources spent on trying to keep products quiet before they are announced. Apple establishes a legal boundary on what its employees, partners, subcontractors, and even 3rd party developers can say about upcoming or unreleased products. If that trust between the two parties is broken, Apple then can take legal recourse against them.
But these websites did not break the legal agreement, they only published the information they were provided. Hence the query into who provided them the information. Now, we enter the grounds of informant protection. Here we have an individual that broke the law (or at least legal agreements), he then provided that information to a news outlet. The news outlet then, knowing it was trade secret material, published the information which, in turn, may have caused harm to the company and its investors.
The key here is that these news organizations, traditional journalists or not, knowingly assisted in the distribution of classified and confidential materials. Further, protecting the “informant” in this case is bordering on protecting a possible criminal. If this was a criminal case, say murder, situations like this would land both parties in jail. It is a harsh comparison but I believe valid.
I understand the need for protecting informants and whistle blowers. That protection is one of the ways we can keep our society in balance. But that protection can not be freely abused. In this case, confidential material regarding trade secrets were released without permission. This is not an informant passing on poor working conditions or illegal (or questionable) company practices. This is not an informant who is passing on information about an situation he/she witnessed. This is a individual who is suspected of knowingly breaking a legal agreement – and that is not a situation where the informant’s identity should be protected.
Seems the judge will be ruling next week … so we will just have to wait and see what the courts eventually decide.
Daring Fireball has a great discussion on the ruling. It was predictable … once again crimping the style of the rumor sites.