By John Gruber
Atoms: We are not selling shoes this time…
My natural inclination is to expand every tangent, no matter how digressive. This makes for more comprehensive, less predictable, and more interesting fireballing. But it’s also a recipe for turning 700-word ideas into 4,000-word essays. That’d be great if I had time to write 4,000-word essays, but I don’t, so it’s not.
One such tangent that I avoided was a “but that’s not to say The New York Times is perfect” section in this week’s piece arguing against the notion that Apple wouldn’t be litigating if it had been The Times rather than Think Secret that had published the same reports of upcoming Apple products.
Judging by the vociferous tone of the email I’ve received on the issue, it’s worth addressing here.
The most-publicized recent incident was the Jayson Blair scandal. Blair was a young Times reporter who, in the words of The New York Times’ own investigation, “fabricated comments, concocted scenes and lifted material from other newspapers and wire services; also he selected details from photographs to create [the] impression he had been somewhere or seen someone, when he had not.”
The Blair case was certainly a fiasco, but it was clearly an exception, not the norm. And there were repercussions. Blair himself, of course, was fired — and a few weeks later, the top two editors at the paper were forced to resign. They didn’t know what Blair had been doing, but they should have. The Times’ own investigation into Blair’s fraudulent reporting was exhaustive.
But while the Blair scandal was certainly embarrassing, it was nowhere near as damaging to The Times’ reputation for trustworthiness as the Judith Miller/Ahmad Chalabi situation. Miller is a leading Times reporter who wrote a series of front-page articles during the run-up to the war in Iraq; her reports cited sources claiming Iraq was in possession of “weapons of mass destruction”. But her main source for this information — which we now know to be false — was Ahmad Chalabi, an Iraqi exile who clearly should not have been treated as a trustworthy source.
While The Times sort of apologized for their pre-war coverage of Iraq, Miller was neither mentioned by name nor removed from her position. Slate media critic Jack Shafer has more on how Judith Miller continues to damage The Times’ credibility.
But no matter how serious the issues are with Miller’s reporting (and for what it’s worth, I personally feel they’re gravely serious), they’re relevant to any comparisons between The Times and Think Secret only insofar as being based on unreliable sources. But Think Secret’s legal troubles don’t stem from its numerous inaccurate reports; they’re in trouble over stories that were spot-on accurate.
Their reports were accurate because they were based on information that Apple claims was obtained by violating trade secret law. E.g., it is illegal to induce someone to spill the beans on a trade secret they are legally obligated not to reveal. It is also illegal to publish or share information which you know to be a trade secret, regardless how you learned about it. It’s not a question of whether Think Secret’s reporters are “journalists”, or if they are, whether they are good or bad journalists. It doesn’t matter because there are no special exemptions under trade secret law for journalists.
Whether Think Secret’s writers qualify as “journalists”, legally, does matter in the case of their motion to have the entire case dismissed under California’s Anti-SLAPP shield law; but if that motion fails and the case is litigated under trade secret law, I believe it’s irrelevant whether they are or are not “journalists”.
[Update: In the separate case of Apple issuing subpoenas for the email of PowerPage and Apple Insider, the court has ruled in Apple’s favor. In his ruling, Judge James P. Kleinberg specifically made the point that it matters not whether PowerPage and Apple Insider are engaged in “journalism”, writing, “The bottom line is there is no exception or exemption in either the (Uniform Trade Secrets Act) or the Penal Code for journalists — however defined — or anyone else.” This will prove just as true in the main Think Secret case.]
Reporters for The New York Times don’t do this. They may engage in speculation about upcoming products — including Apple’s — but not by engaging sources willing to reveal a company’s trade secrets. E.g. this 2002 Times article by John Markoff, speculating that Apple was on the cusp of releasing an Apple-branded “iPhone”. (See also my response to Markoff’s article.)
Markoff quotes analysts and unnamed individuals “close to the company”, but offers no genuine inside information from Apple employees. Now, obviously, one reason for that is that he was wrong — Apple was not on the cusp of releasing an iPhone in 2002. But even if Apple had gone on to release an iPhone soon after Markoff’s report, it wouldn’t have been grounds for Apple to sue The Times. Speculation is not a violation of trade secret law.
Inducing someone to break a non-disclosure agreement is.