ThinkSecret Gets Legal Representation

[nagromme]

If DePlume has done something illegal that I don't grasp, I can understand Apple taking action--and against the people who signed NDAs especially. Apple has to keep their plans secret from competitors. And they have to tread a happy medium between coming down hard on ALL insider reports and rumor sites, vs. doing too little to defend their intellectual property. Upsetting some rumor fans (like me!) and going after one key problem site may be a necessary compromise for Apple.

But if DePlume HAS acted within the law, the case should be thrown out. I'm glad he has a lawyer now. I've seen nothing to explain how Apple has the legal basis for going after Think Secret.

I'm sure it will emerge pretty clearly in court, one way or the other. The interesting thing may be defining the bounds of "journalism." I can understand that not every person with a web site can call themselves a "journalist" as an excuse for covering up illegal acts committed by others. Especially when those acts benefit the person with the site. People violating NDA certainly did benefit ThinkSecret--a venture which does take in money for traffic. Yet so does any news site--I'd certainly say ThinkSecret qualifies as journalism!

Maybe it comes down to whether ThinkSecret offered something as incentive to cause people to violate NDA? I doubt it.

(As for the First Amendement... that doesn't apply anymore, does it? I thought the Bill of Rights was replaced by the Patriot Act and the Bush FCC. Unless I missed something?)

 

[bigandy]

this case is in two parts:

1. apple going after thinksecret to get names
2. apple squashing the culprits

they're not out to get or make an example of this guy - they are using legal threats and actions to get the names of the people who talked - to go after them. if he speaks case is dropped.

and apple CAN sue the guy, anyone can sue anyone for pretty much anything, even if it is legal because of your first amendment.

oh, and this:

Gotta love the country we live in. USA all the way, i still think there should be some restrictions put on stuff like this, cuz apple functions on secrecy bigtime.

WTF? the country WE live in? pull your head out your arse and start to realise this isn't an american-only website. why are some people over there so short sighted? grrr!

 

[Tulse]

I suspect the entire case will revolve around whether Apple can prove that ThinkSecret gathered the leaks legally.

If they, say, bribed someone under contract, and Apple can prove it, they have them in the bag.

Even if Nick didn't bribe someone, he still likely broke the law. The relevant portion of the California Uniform Trade Secrets Act says:

(b) "Misappropriation" means:
** (1) Acquisition of a trade secret of another by a person who knows
or has reason to know that the trade secret was acquired by improper
means; or
** (2) Disclosure or use of a trade secret of another without express
or implied consent by a person who:
** (A) Used improper means to acquire knowledge of the trade secret;
or
** (B) At the time of disclosure or use, knew or had reason to know
that his or her knowledge of the trade secret was:
** (i) Derived from or through a person who had utilized improper
means to acquire it;
** (ii) Acquired under circumstances giving rise to a duty to
maintain its secrecy or limit its use; or
** (iii) Derived from or through a person who owed a duty to the
person seeking relief to maintain its secrecy or limit its use; or
** (C) Before a material change of his or her position, knew or had
reason to know that it was a trade secret and that knowledge of it
had been acquired by accident or mistake.

Now, I am not a lawyer, but as that reads to me, Nick is in trouble simply if he published material he had reason to believe came from someone violating an NDA, or terms of employment, or from someone who illegally obtained the information through other means, or even from someone who mistakenly or inadvertently passed along material that was under an NDA.

In other words, Nick didn't have to use any sort of coercion. He could have found this information in an employee's journal in a dumpster ("derived from...a person who owed a duty...to maintain its secrecy"), and it would still have been illegal to publish it.

I suppose one can argue First Amendment freedoms against the law in general, but since almost every state has a UTSA, I would guess that the constitutionality of these provisions have already been tested.

I would appear to me that Nick's only real defense is that he didn't know the material was under NDA, but given that this is Apple, and that Nick runs a rumours site, I think it would be hard for him to maintain this position.

 

[Laslo Panaflex]

Look, believe it or not, the rumor sites hurt Apple, not usually by when they are right, but by when they are wrong. Last year, before Macworld, Think Secret predicted that the iPod mini would start at $99, and the initial reaction when Apple introduced it at $249 was that it was over priced. The mini obviously went on to sell like hot cakes, but its introduction has directly marred by the false information disseminated by Think Secret. This is not to say that Think Secret does not have a right to publish such info, they do, but no one should be under the impression that sites like Think Secret actually help Apple. They don't.

What?!?! You just contradicted yourself. You said the pre-macworld hype about the iPod mini hurt Apple, but then it went on to sell like hotcakes? So, how did this hurt Apple, it didn't all it did was make the introduction of it during the keynote, less "oooo and ahhh", which was hardly detrimental to Apple sales. And of course the people in the keynote are going to act that way, becuase they are mac fanatics, and they read the rumors, joe consumer, who buys the iPod mini doesn't read the rumor sites.

What it all comes down to is that Apple, just like every corporation, has a loyalty to its stock holders to make money, bottom line. The rumor sites post hersey and conjecture, and then the stupid wallstreet anaylisists tell the world that "Apple is coming out with a blah, blah, blah, buy Apple stock" and then when nothing near to the rumor is annouced, it hits the fan and stock falls and yada yada yada. I suppose the disclosure of the "trade secrets" could be harmful, but 2 weeks before the product is announced, come on.

Really, rumors will be a part of every public company that makes hot products that people want, and Apple is definately that. Like others have mentioned, the only way Apple has a prayer is if they have some "proof" that Nick was indeed bribing Apple employess for information, if not it's a freedom of speach thing.

I am looking forward to seeing what comes of this whole mess.

 

[xsnightclub]

I am mixed on this issue

Most people seem to think TS has the right to publish as long as they did not do anything illegal to obtain the info.

Most people also seem to think the Apple employees or employees of manufacturer (which are still covered by NDA, through manufacturing contracts) should be terminated and/or the lawsuit should be directed at them.

I am a firm believer in taking reponsibility for your own willful actions, if more people did take responsibility for their action in our society we would be much less litigous. I don't like the fact that Apple is suing TS. However, I also strongly believe that TS should take responsibility for its own actions, which it benefited from, and reveal the source of the information. Unfortunately a lawsuit is the only legal means Apple has to try and get TS to reveal the information. If Apple was after closing down all rumor sites they would have sued more than just one (it would be easier in court to prove misconduct of the rumor sites if you a had bigger pool to choose from).

That being said, I am not a big fan of lawsuits, but they are necessary sometimes. I think the vast majority of people here, me included, love and respect both Apple and Think Secret. I wish them both the best and hope for an outcome that keeps them both strong and relevant.

 

[Object-X]

Who is the Mole?

The million dollar question is whether Apple can get Nick to pony up the name of his source. I don't think Apple gives a rat about ThinkSecret, what they really want is to know who is leaking the goods. Eliminate that person and ThinkSecret is effectivly gone. I think this is Apples' way of putting pressure on ThinkSecret or to intimidate the leaker from sharing info knowing that Apple is really trying to identify him(her). They should make it into a reality TV show. Who is the Apple mole?

 

[gwangung]

Haven't had time to read the complaint and answer, but:

No one here should be saying which side is right at this point. We simply don't know how dePlume obtained the information he had. If Apple can prove by a preponderance of the evidence that he obtained it illegally, then Apple easily wins.

However, don't rely on dePlume's answer (or his attorney's statement) for a definitive statement of the issue here. He's trying to frame the question narrowly (limiting it to whether or not dePlume legally obtained the information). Apple also has a broader argument as to whether the First Amendment protects someone who knowingly publishes illegal (and legally protected) information.

Thus, Apple has a non-First Amendment argument (going to the legality of dePlume's information gathering) and a potential First Amendment argument. The First Amendment has not ever been taken to allow everything into print.

Bottom line: Most of the opinions here are uninformed because we simply don't have the facts. Apple may be exactly right, or it may not have any argument at all. We just have to let the court do its job.

One other thing: This is likely to have very little effect on other rumor sites. If the case turns on how the information was obtained, then any site not engaging in illegal activities has nothing to worry about. If the issue goes to knowingly publishing trade secrets, then it still would depend how they were obtained. If they are already available to the public (as is nearly everything that appears on Macrumors. com), then they are, almost by definition, not trade secrets. If they are not, then the question again moves outside the First Amendment. It's possible that a court could issue a broader ruling here, but very unlikely.

elo

YAY!

Someone who actually knows what he's talking about!

Therefore, you MUST leave the discussion...IMMEDIATELY!

 

[gwangung]

What it all comes down to is that Apple, just like every corporation, has a loyalty to its stock holders to make money, bottom line. The rumor sites post hersey and conjecture, and then the stupid wallstreet anaylisists tell the world that "Apple is coming out with a blah, blah, blah, buy Apple stock" and then when nothing near to the rumor is annouced, it hits the fan and stock falls and yada yada yada. I suppose the disclosure of the "trade secrets" could be harmful, but 2 weeks before the product is announced, come on.

Two more weeks for a competitor to whip up a product and make an announcement BEFORE Apple does their announcement.

Ya don't think that could impact Apple? COME ON. Think a little....

 

[Sun Baked]

I'm surprised they are trying the preliminary stages in the case, in California -- I would have expected them to try to get it tossed to either Think Secrets home state, or Nick's current home state.

Or at least tried to get a preliminary judgement against Apple that the information wasn't a trade secret, that it was already published elsewhere -- and Nick was asserting his Section 230 rights to rebroadcast the original article/information. But pulling that off is doubtful, unless the info is hiding on a Chinese site somewhere.

California is a terrible place to try this case for Nick -- because the current case law on First Amendment vs. Trade Secrets Law for websites seems to be against him.

---

But as a journalist, Nick knows his source will most likely be arrested the second he produces a name or information that leads Apple directly to him.

So you have to hand it to him for the lengths that he will go to in avoiding that outcome.

 

[milatchi]

Well, this is one I hope Apple loses.

 

[xsedrinam]

The leaker isn't necessarily an Apple employee. The manufacturing chain these on products is huge, and runs all the way to Asia. For all we know, it could have been some assembly line worker in China who leaked the info. If that's the case, Apple is going to have a heck of a time sanctioning them, even assuming Nick has a person's name he could give Apple, which I suspect he does not.

IJ, I think you make a good point. There are a lot of assumptions, here, not the least of which is that the leak probably came from "inside". So, theoretically, let's say the source actually turns out to be Shanghai Mein and Yoo Sung Too. Where does that go, or end up?
X

 

[themadchemist]

Huh. Again I wonder if Steve simply had a complete hissy fit and said *insert image of Steve pointing out a window with thunderbolts shooting from his finger with a booming voice* SUE THEM hoping that TS would simply roll over like a good lapdog.

I think this is exactly what happened. Apple didn't expect ThinkSecret to put up a fight. Come on, big companies threaten individuals all the time with litigation and that's usually enough to frighten off the individuals. However, when ThinkSecret decided to stand and fight, Apple couldn't simply back down. Therefore, Apple is now fighting this case as a matter of pride. I honestly wonder how much evidence Apple really has that TS did something wrong, considering that the threat of litigation was probably just a baseless warning to ward off those-of-weak-stomachs-and-hearts.

 

[hartsft]

SNIP Besides isn't this whole thing supposed to be about "Asteroid"? What is up with that anyway?

i think they mentioned other things as well- must have been a decoy

i think we should leave this to the lawyers etc. who actually know what they are talking about folks!

 

[IJ Reilly]

IJ, I think you make a good point. There are a lot of assumptions, here, not the least of which is that the leak probably came from "inside". So, theoretically, let's say the source actually turns out to be Shanghai Mein and Yoo Sung Too. Where does that go, or end up?
X

Exactly. Which is one reason why this entire episode seems to me to be a wild goose chase, that in the end, could end up damaging Apple more than any rouge leaker could.

And to the comment that if Apple proves Nick published a trade secret in violation of California or Federal statutes, then they will "win" -- I will add that they also need to prove that they were damaged. The burden of evidence for both is entirely on Apple's shoulders. It's a very tough hill to climb, which leads me to believe that nobody seriously expects this case to go to trial. Most lawsuits don't, anyway.

 

[asphalt-proof]

What?!?! You just contradicted yourself. You said the pre-macworld hype about the iPod mini hurt Apple, but then it went on to sell like hotcakes? So, how did this hurt Apple, it didn't all it did was make the introduction of it during the keynote, less "oooo and ahhh", which was hardly detrimental to Apple sales. And of course the people in the keynote are going to act that way, becuase they are mac fanatics, and they read the rumors, joe consumer, who buys the iPod mini doesn't read the rumor sites.

What it all comes down to is that Apple, just like every corporation, has a loyalty to its stock holders to make money, bottom line. The rumor sites post hersey and conjecture, and then the stupid wallstreet anaylisists tell the world that "Apple is coming out with a blah, blah, blah, buy Apple stock" and then when nothing near to the rumor is annouced, it hits the fan and stock falls and yada yada yada. I suppose the disclosure of the "trade secrets" could be harmful, but 2 weeks before the product is announced, come on.

Really, rumors will be a part of every public company that makes hot products that people want, and Apple is definately that. Like others have mentioned, the only way Apple has a prayer is if they have some "proof" that Nick was indeed bribing Apple employess for information, if not it's a freedom of speach thing.

I am looking forward to seeing what comes of this whole mess.

I agree. Stock analysts, industry watchers etc. know enough (or should anyway) to be able to parse fiction from the probable. If I started a website and pulled theories out of the air and posted I'm pretty sure that "they" would discount my predictions in a hurry.
An interesting alternative theory: What if TS got all their info from publically available sources. It may be possible for somebody to go through other companies websites, press releases, literature etc, and make some very plausible conjectures. I remember in the 80's or 90's an interveiw with Tom Clancy reveal that he got most of his info from trade magazines and the like in the lobby of the Defence Department, Dept. of Navy etc. Apparently the miliary and CIA were a little concerned about how he was obtaining his info and spoke to him about it thinking they had a leak. They were astounded that he was able to take all the disparate info and put together and coherent picture of weapon systems, tactics, strategies, some of it still labeled "Secret".. In fact, in Red Storm Rising, he had the Soviets using the T-80 main battle tank. The Soviets were feeding the CIA et.al. info about this tank that actually never existed. Guess where Tom got his info?
My point is, somebody with a lot of time could conceiveably come up with this info from other sources other than an employee.

To Gwangung:
I really doubt that a company could whip together a product in two weeks that would be anything but marginal. It may put a bit of a damper on the Apple announcement. But conceivably, Dell could comeout the week before Apple and announce a whole slew of fictional products that would make the press discount anything Apple would reveal as irrelevant. In the long run, it only hurts Dell.

 

[Laslo Panaflex]

Two more weeks for a competitor to whip up a product and make an announcement BEFORE Apple does their announcement.

Ya don't think that could impact Apple? COME ON. Think a little....

Let's see, iPod shuffle, joining an already crowded flash based mp3 player market, hardly hurt from from leak.

And again, the mac mini, this is the first time that Apple is entering the low end PC market, in which there are already competitors, again hardly hurt from leak.

Could competitors have seen that info and said "wow, we need to get out there and make a direct competitor!!!" sure, but highly unlikely considering that the 2 main products announced at this years macworld, (and that are the heart of the lawsuit), are entering crowded territory(espicailly the shuffle).

 

[gorkonapple]

Sigh...

This whole Thinksecret suit Apple is pulling just slams as being wrong. First, Thinksecret found out about something. They had to find this out from someone who was VIOLATING a NDA! That is unless Thinksecret was forced into signing a NDA then violating it. So, if Thinksecret did not violate a NDA, then they are free to go so to speak!

 

[asphalt-proof]

I'll try to find that Clancy interview.

 

[impierced]

I think this is exactly what happened. Apple didn't expect ThinkSecret to put up a fight. Come on, big companies threaten individuals all the time with litigation and that's usually enough to frighten off the individuals. However, when ThinkSecret decided to stand and fight, Apple couldn't simply back down. Therefore, Apple is now fighting this case as a matter of pride. I honestly wonder how much evidence Apple really has that TS did something wrong, considering that the threat of litigation was probably just a baseless warning to ward off those-of-weak-stomachs-and-hearts.

I'm not so sure.

Apple has been sending ThinkSecret cease and desist notices for quite some time now. For a while it was ThinkSecret would post, and then removed at the request of Apple legal, repeat, etc. For whaterver it's worth - this sets up a pattern that may hurt Mr. dePlume.

Apple has also shown they do not consider Mr. dePlume a Journalist as they revoked his press pass for MacWorld Expo NY 2002 (although IDG later claimed it was there decision after a whirlwind of press). Maybe that proves nothing, but it certainly puts him on Apple's radar screen.

My guess is that this has been a long time in the works and the mini leak was the final straw.

 

[ObviousTroll]

Apparently lots in here don't see it that way; but that's the way I see it. When this kind of leaky disloyalty isn't taken care of as it should be, "in-house", then the whole public gets a whiff of the alternative aftermath, "out-house".
X

I suspect that Apple wouldn't have bothered with ThinkSecret if they could figure out another way to find out who is leaking.

I'm almost certain that this lawsuit is simple Apple trying to force that information out of ThinkSecret.

 

[cyberfunk]

Legal Rep.

Here's the thing I'm wondering about.... if they can prove that think secret enticed employees under NDA to release privledged information, do they then have reason for retribution ?

That is, is it illegal to encourage someone to break their NDA, even if YOU arent doing the breaking ?
Wether or not ThinkSecret actually encouraged people or if they came to them with the information is of course another point of contention.

 

[sinisterdesign]

yeah, i don't think nick is the one they want. he distributes rumors, but it's the employees that leaked the info that they're after. you know there are some people on One Infinite Loop shaking in their shoes right now, "don't tell 'em, nick. c'mon man, i need this job!"

if they are ferreted out, their names will be made public, i feel sure, and it will be a TOUGH time getting a job in the tech industry after that.

not only that, if they can find them and make an example of them, current & future employees will think twice before telling a friend about the cool project they're working on in cupertino. i was stuck in the HR dept when i was there, so the only thing i ever saw or overheard was salary info for some random programmer or something. very boring.

 

[impierced]

Here's the thing I'm wondering about.... if they can prove that think secret enticed employees under NDA to release privledged information, do they then have reason for retribution ?

That is, is it illegal to encourage someone to break their NDA, even if YOU arent doing the breaking ?
Wether or not ThinkSecret actually encouraged people or if they came to them with the information is of course another point of contention.

Under California Trade Secrets law I'm not so sure Apple has to prove ThinkSecret enticed anyone under NDA to release information.

ThinkSecret's own web site solicits info, just look at their front page. If you look at the contacts page they even go so far as to say, "For sources with sensitive information requiring encryption, we offer Think Secret's PGP public key."

 

[Porchland]

The outcome of this case will certainly have effects on the Mac Rumor web.

Not necessarily. It depends a slew of things: whether the same state could subject macrumors to jurisdiction, whether macrumors is reporting something or merely repeating it, whether they settle. There's so many factors, that it may not have much of an effect at all on macrumors.

 

[Porchland]

Under California Trade Secrets law I'm not so sure Apple has to prove ThinkSecret enticed anyone under NDA to release information.

ThinkSecret's own web site solicits info, just look at their front page. If you look at the contacts page they even go so far as to say, "For sources with sensitive information requiring encryption, we offer Think Secret's PGP public key."

No more than a hot dog stand entices you to eat hot dogs. I'm going to be surprised if Apple is able to circumvent the first amendment and hook Think Secret on this one.