Apple suit tests First Amendment

In its court action last week, Apple sued not only the unnamed individuals who revealed Apple's inside information, but also those at Mac enthusiast site Think Secret who helped publish it.

"To me, it is very disturbing that Apple, or anybody frankly, would try to invoke trade secrets to go after a media publication or, for that matter, even a blog," said Paul Grabowicz, director of the New Media Program at the University of California at Berkeley's Graduate School of Journalism. "If they think somebody inside is leaking information, then they should be going after them directly."

However, some legal experts say the Mac maker may well have a case.

"I think there is potential liability," said Daniel Westman, a partner at law firm Shaw Pittman. "The trade secret statutes are very, very broadly written with the idea in mind that people who are maliciously intended could try to hide their action through intermediaries."

Apple and Think Secret representatives declined to comment for this article.

For Grabowicz, Apple's suit is part of a disturbing trend in which businesses and government are suing media outlets to uncover leaks. Even before this latest suit, Apple had already gotten a court to issue subpoenas to Think Secret and two other enthusiast sites seeking to force them to turn over information about their sources for reports on upcoming Apple products.

"The ones who are going to lose are the public," Grabowicz said. "They are either going to not have the information or the information they have is going to be orchestrated by the government and corporations."

Grabowicz said he wonders what the limits are in terms of what might be construed as a trade secret. "If a reporter does a story on a defective product based on leaked information, can they be sued?"

Westman said some deference is given to whistle-blowers who reveal inside information to expose wrongdoing or a public safety threat. However, he said it seems unlikely that the information Think Secret posted would get similar protection.

"It will be interesting to see this case and see if the First Amendment does provide protection, but I doubt it," Westman said from his office in McLean, Va.

Ultimately, Westman sees the case as a collision of two government aims--promoting innovation and protecting free speech. "You are talking about a clash between property rights and free-speech rights," he said. "There are limits to both."

In its case, Apple tries to characterize the action as one related to

"Apple does not seek to discourage communication protected by the free-speech guarantees of the United States and California constitutions," Apple said in the suit. "These constitutionally protected freedoms, however, do not extend to defendants' unlawful practice of misappropriating and disseminating trade secrets acquired through the deliberate violation of known duties of confidentiality."

Apple noted in its suit that Think Secret goes out of its way to solicit inside information, posting calls on its Web site and offering anonymous voice mail and Web forms to garner dirt on Apple's machinations.

"Think Secret openly proclaims its purpose is to misappropriate and disseminate Apple trade secrets," Apple said. "Think Secret promises accurate prerelease information--including exact specifications in many cases--for upcoming Apple hardware including PowerBooks, iMacs, iBooks and Power Macs."

But Grabowicz said that seeking dirt is what journalists do.

"They are very publicly doing what reporters do all the time," Grabowicz said.

Westman doesn't disagree with that assertion, saying the practical reason that there aren't more lawsuits against media outlets is that most companies want the publicity about their products.

"Most organizations crave the attention," Westman said. "That's the practical reason that you don't see this very often."

Whether or not Apple has a legal case, Grabowicz said that ultimately he believes it is bad publicity for Apple to be suing what, in essence, are sites run by its fans.

"It strikes me as, No. 1, picking on the little guy, and No. 2, counterproductive from a public relations front in hurting the people who buy their products," he said.

Grabowicz said he has been considering a switch from Windows PCs to Macs but may rethink it. "I don't think it's going to change my decision, but this is the kind of thing that gives me pause."