Scratching the surface of Apple v. Does

By now, everyone who reads law and technology related weblogs is aware that a California court has permitted Apple Computer, Inc. to issue subpoenas to weblog author-editors and ISPs. Apple aims to discover who leaked information about an Apple project called "Asteroid." The court order rejecting the webloggers' motion to quash the subpoenas is here [via EFF].

To comply with the subpoenas and order, the webloggers will have to disclose the sources underlying the articles they published. The webloggers are not currently defendants in the lawsuit — the defendants are the people from whom the webloggers received the information in the first place. Apple might, under the circumstances, be able to join the webloggers as defendants for disseminating trade secret information. But it currently seems that Apple's primary goal is to rout out its employees who leaked the information, firing them and maybe (or maybe not) maintaining its suit against them.

Here's a very non-exclusive list of what some people have had to say about this case in the legal and technical blogosphere since the court released its ruling:

• Denise Howell (Bag and Baggage): Links and information.
• SoCal Law Blog: Brief comment. (I would not normally endorse a weblog so drowned in advertisements that one can scarcely find the text. –tph)
• JMoore (JurisPundit): JMoore was hoping for some analysis on the role of blogger-as-journalist, an issue the judge sidestepped by holding that no journalistic privilege at all applied in the case.
• News release, Electronic Frontier Foundation. The EFF provided legal support to the webloggers.
• Donna Wentworth (Copyfight): Donna criticizes the judge's determination that no First Amendment journalistic privilege applied in the case, and links to—
• An exchange [one] [two] between Susan Crawford and Ernest Miller on the proper scope of First Amendment journalistic privilege.
• Dan Gillmor worries that if this ruling is upheld on appeal (assuming there's an appeal), business reporting will become too dangerous for reporters.
• The Mercury News's Mike Langberg asks Apple to reconsider its legal approach toward enthusiasts because it communicates arrogance and attacks people who love Apple and its products.

It seems to me that the main thing that really bothers Apple enthusiasts about these subpoenas (as well as some other claims Apple has been pursuing against enthusiasts who spread leaked information) is that they convey the impression that Apple wants to punish webloggers who are enthusiastic about its products. This impression relates to Langberg's argument in his editorial. As I've followed the news and commentary, I've been wondering about Apple's business decision to proceed with these lawsuits more than the nuances of the legal doctrines that apply (though the latter are important). I have to admit that my first impression of Apple's lawsuits was that they seemed eager to stifle the very kinds of enthusiasts who provide valuable word-of-mouth marketing for their products — the kind of marketing that you just can't buy.

Apple hasn't even tried to justify its strategy to the public, and if it tried to do so using one of those "we just have to protect our intellectual property in all cases" arguments, I'd be sorely disappointed. Still, I've tried to imagine why Apple might want to pursue these cases knowing that there is some risk that it might alienate some enthusiasts. What might the people in charge of this policy at Apple be thinking? My first impression is that Apple likes word-of-mouth and media hype for its products, but it really wants to be able to control that hype itself. Is that just the symptom of obsession for control, or can one justify the desire for control?

In some circumstances, Apple might want to conceal new product plans because it wants the maximum lead time in the market before competitors could develop a competing product. But this case doesn't look to me like a situation involving intense competition in a particular market space. The secret information at issue in Apple v. Does relates to an improvement to theGarageBand music sequencing software in the iLife software suite.

Maybe there was a major concern about competitive advantage for Apple in this case — I don't pretend to know all about the market for music sequencing software. But it looks to me like Apple is trying to enforce a blanket policy regardless of whether this particular leak is comparatively a "big deal."

Concerns about employee discipline provide one potential justification for pursuing "leakers" even if the leak didn't cause severe damage. Assuming that Apple has a blanket policy of secrecy — and it has had just such a policy since the 1970s — it probably wants to be very sure that it employs only people who can honor that policy, and it probably wants to fire those who don't honor it. It's probably wrong to label such firings "retaliation," since Apple has reasons other than spite for discharging people who break their agreements. For example, distributing certain information about forthcoming Apple products may in fact cause Apple harm if it tips off competitors. Also, leaking information about the company's projects may hurt morale, given that Apple has many employees who do act very cautiously to protect information about its development efforts. They probably don't want to feel that their own co-workers are disseminating the very information that they are trying to protect. I don't know how much of a problem that is because I don't know anyone who works at Apple.

I think Apple should have some right — probably a right with a lot of enforcement leverage — to demand confidentiality from its employees. I also think it should be able to use legal tools to do so. I'm just not sure where the line should be drawn as a policy matter. Maybe those tools should be limited, or maybe they should have a broad reach except in those cases that would classify as "whistleblowing."

I've seen a lot of discussion about whether the webloggers affected by subpoenas in Apple v. Does should be treated as journalists. Most people assumed the court's ruling would focus on that question. But the court concluded that regardless of webloggers' status, disclosures by Apple's employees about Apple's forthcoming products didn't implicate a journalistic First Amendment privilege at all.

That conclusion raises the question, When do communications to a journalist (however that word may be defined) about a company's business or research activities obtain a privilege such the journalist cannot be compelled to identify the source of the information? That question is probably more important than the journalist/weblogger question, and it's the core of a conversation that's started over the weekend (see, e.g., Crawford and Miller), and it's an important one.

I'm not sure where I stand on that issue, and if I have enough time this week I'll play around in this space with some possible arguments related to that question. I don't want a policy under which companies designate everything under the sun as "trade secrets" to prevent dissemination, but I also don't want a policy under which employees can feel free to share whatever company secrets they want as long as they're talking to a journalist.

In the meantime, I'll look forward to reading more arguments about the legal standards that apply and about Apple's policy in particular. I'll be especially curious to read any arguments people might test out in support of Apple's policy, since I didn't exactly work philosophical or rhetorical wonders in its favor earlier in this post. Before we can really evaluate the legal standards that apply, I think we need to try to understand why Apple might want to draw close the cloak of secrecy. If we don't give serious attention to that viewpoint, the perspective of the business that generates the information that it then seeks to protect, our discussion of the legal standards will be under-informed and imbalanced.