Introducing the iLawsuit

Contract and Trade Secrets law seem like topics much more likely to be on the mind of a law student than a Harvard freshman during reading period. But as reported on Wednesday in The Crimson, for Nicholas M. Ciarelli ’08, these subjects have just become very important: Nick has been sued by Apple Computer, Inc. His alleged crime? A post he made to a popular Mac rumor mill he runs (www.thinksecret.com), describing products that he said were to be announced at the MacWorld expo keynote address by Apple CEO Steve Jobs, which occurred this past Tuesday.

The suit, filed in the Superior Court of California in Santa Clara County, alleges that Ciarelli induced employees of Apple or Apple affiliates to reveal proprietary information in violation of contractual agreements, and then released known trade secrets to the public. These employees are also targeted by the lawsuit, though their names are not yet known: Apple hopes to compel Think Secret to release the details of its communication with its sources so that the company can ascertain their identities and seeks damages from Think Secret directly for publishing its findings.

There are important questions raised here that are essential to understanding the rights and responsibilities of news sources (for example, The Crimson)—particularly as the definition of “news source” expands in the era of the Internet to include blogs like Ciarelli’s Think Secret. The first of these is on the efficacy of a free press. Can someone in the media publish information if their source obtained that information illegally? It seems the obligations of the press ought generally to lie with the public, and not with personal or corporate interests. Still, we make exceptions to this in cases of slander or libel—might we also want to make one in this case?

The United States Supreme Court has addressed this issue several times, including in Bartnicki v. Vopper, a 2001 case involving negotiations between a Pennsylvanian teacher’s union and a district school board. During the discussions, an inflammatory cell phone call was illegally intercepted and the tape of that call was passed on to an anti-union intermediary, who gave the tape to Vopper, a radio news commentator. Vopper, knowing that the tape had been obtained in violation of wiretap and other privacy laws, aired it anyway. The court ruled that this was acceptable: “Privacy concerns give way when balanced against the interest in publishing matters of public importance.”

The situation with Think Secret is, of course, quite different from that in Bartnicki. For one, the interest being protected is not privacy in the broad sense but is rather a corporate trade secret. We also ought to ask whether the information about upcoming product announcements counts as a “matter of public importance.” It does appear that Think Secret’s actions are in violation of the California Uniform Trade Secrets Act, as Ciarelli probably knew that what he was disclosing had been “derived from...a person who had utilized improper means to acquire it.” And Apple, as their claim makes clear, most certainly takes steps to protect the privacy of information of the sort that was revealed.

So the question we must ask is, does the concern of protecting trade secrets give way as the wiretap concerns did? The answer appears intuitively to be “sometimes.”

Suppose I’m publishing an article about migraine medication, and a drug company representative mentions that his company has launched an internal investigation to determine if the drug causes severe heart problems. I’m then told by a supervisor that the information about the study is a trade secret, that the person I spoke to was in violation of his contractual agreement with the company, and that I am not to disclose what I’ve heard on threat of civil action. It seems in this case that I should be protected if I choose to provide this information: If I’m to be allowed to weigh fairly my claims about medications, I ought to be able to rely on everything I know.

On the other hand, what if the subject of my book is a television buying guide, and the proprietary information is that Sony is releasing a better, cheaper model of a high end television in two months time? Well, revealing this information might make my book on televisions more informative, but it also amounts to transferring money to my readers from Sony. In this case, which feels analogous to the Think Secret suit, the weight of the competing claims seems to depend on the complicated economic effects of granting this right to either party.

We ought to be able to come up with a law that properly distinguishes between these situations if economic analyses demonstrate the need; years of legal precedents including Bartnicki have tried. Still, even in such ambiguous circumstances, we must rely, when in doubt, on the Bill of Rights. It guarantees us freedom of the press, and this is a freedom not to be lightly infringed upon. Otherwise, as McKay Professor of Computer Science and former Dean of the College Harry R. Lewis ’68 suggests (not, as it were, on condition of anonymity), it would be advisable for University Hall to place everything in folders labeled “trade secrets:” Surely this would give them good recourse against the prying eyes of Crimson reporters.

Matthew A. Gline ’06 is a physics concentrator in Quincy House. His column appears regularly.