Gizmodo raid: Crimefighting, or journalistic threat?
>>Some of you may have noticed the title for this conference is Story Telling in the Age of Creative Destruction and so we kind of focusing on the creative destruction part here which has become very obvious lately when I believe it was Gizmodo that creatively destroyed iPhone fourth generation prototype with various effects after that but all jokes aside, this is a big issue in innovation journalism because Declan and I, Declan McCullagh from CNET CBS, the Chief Political Correspondent there, we had this discussion a few weeks ago when we were discussing to do something together and Declan told me that actually these types of incidence where tech companies try to keep the press silent by suing them and referring to intellectual property protection is something fairly new. It came sometime first in the 90s I believe you told me and now it's becoming quite common actually. We see it more and more. So, the question is actually that it seems like now that innovation is what's ruling our futures and is kind of determining future society the First Amendment is on a collision course with intellectual property protection. What will it be freedom of speech or protection of company secrets? So, here's what we decided that this is a perfect topic for the conference in innovation journalism. Was it so close to journalism Romaine [phonetic] society? And it's so close to what innovation journalists need to think about to do their jobs. So, we brought together a panel mainly through Declan's wonderful contact network he's built up by covering politics in the valley. So, we have Declan McCullagh, of course, CNET CBS, sitting in the middle. We have Williams Coats, managing partner and intellectual property litigator, Kay Sholer's Mendal [phonetic] Park offices. We have Jennifer Granick, Director of Civil Liberties, Electronic Frontier Foundation, Roger Myers, partner of the San Francisco office and co-chair of the IP, Technology and Media Group of Holme Roberts & Owen and at last, Paul Saffo who is Managing Director of Foresight at DISCERN Investment Analytics and a consulting professor here at Stanford University. We will start with Declan leading the discussion for 45 minutes and then we will continue with questions from the audience. Thank you.
>>Declan McCullagh: Thank you, David. There's, I should say that CNET owned by CBS, my employer, is also pleased to sponsor this panel in conjunction with David's organization and, so, we're recording video in the back and we'll have that up on our website in 24 to 48 hours, so, we could have done it more quickly but a lot of our staff is up in San Francisco covering Steve Jobs who said something, a minor little speech earlier today. So, we have folks on this panel who have occasionally litigated opposite one another and so that should lead to an interesting discussion now but let me start first with Roger, Roger is to my right, he has represented CBS as our outside counsel for free speech First Amendment issues and recently he led a successful fight to unseal some of the documents in the Gizmodo lost iPhone case and we got the documents, they're very interesting, the media coalition represented not just us but also the L.A. Times associated press, Wired and so on. So, Roger, you are involved in this case and you won the motion you filed. What issues did the Gizmodo lost iPhone prototype and possible criminal charges, what issues where raised for journalists in terms of trade secrets, intellectual property in the First Amendment?
>>Roger Myers: Yeah, I think it's good that we don't have to give this setup because it's such a complicated story so I'll just kind of jump right into the nut of it which is that there are two I think disturbing trends with the Gizmodo case illustrated. The first and most obvious one is that you have one of the first instances where really there is an attempt to criminalize news gathering. It's actually an ongoing attempt. We don't know yet whether charges will be filed. The basis for the search warrant against Jason Chen who is the Editor of Gizmodo was theories of criminal trade secret misappropriation in what's called criminal conversion using somebody else's private property, putting it to your own use. The factual basis for that was that Gizmodo paid $5,000 for this prototype phone that had been left behind in a bar and found but the paying of the money really is not essential to the theories of criminal liability. The theories that are underlying the search warrant affidavit would be there regardless of whether Gizmodo had paid any money or not. It's not a bribery case. It's not a payment of for buying a stolen goods case per say. So, that's disconcerting and the trend it illustrates I think is one that's being driven by technology and it's basically it's not intellectual property so much as it is technology. There's been a history of cases in which large corporate interests have gone in and gotten injunctions against websites to stop publication of something and we can talk about those in a little bit more detail yet that was involved in one of those cases in New York. I was involved in one of the cases in San Francisco involving WikiLeaks a couple of years ago. Ultimately, the injunctions got overturned by the judges who issued them for a couple of reasons. One of which was the injunctions were utterly ineffective. Yeah, okay, they managed to take down the one website that had the documents posted there that Eli Lilly in one case and a Swiss bank in the WikiLeaks case were concerned about but cached copies and mirror sites have, you know, basically had access to those same documents and they popped up all over the web all over the world and it was just basically a case where ultimately the court said I'd have to spend the rest of my life playing Wack a Mole and it still wouldn't be effective. I just can't do it and that was one of the reasons, the judge in New York very reluctantly, the judge in San Francisco not so reluctantly because of something I will get into in a minute, lifted the injunctions and I think that's why Apple when Apple was faced with the Gizmodo situation the story gets posted, there's a story about their prototype phone with details that have never been publicized, there's detailed photographs of the phone on the website. Normally, back in the day Apple probably would have filed a civil lawsuit and they would have sought what's called a temporary restraining order that would have run into court right away to try to get the judge to issue an order to take down the story, take down the photographs. My guess is that Apple and its outside counsel figured they could do that but it would be utterly ineffective. They'd get the order, that would attract a lot of publicity, the publicity would let people know even though that order had been issued, the documents were, the photographs and story were still available in various other places on the internet and, so, it would just bring more publicity to the situation and wouldn't be effective in giving Apple any relief. So, they decided to try and criminalize news gathering and they went to law enforcement and they went to the, you know, computer technology team, multi-jurisdictional law enforcement team and convinced them that crimes may have been committed enough to convince them to go to the judge and get a search warrant to search a journalist, this journalist didn't have a newsroom, he works out of his house, so, essentially they searched his newsroom which was his house, seize his computers and things like that.
>>Let me go to ask Jennifer to chime in for a moment and that is Apple sued some blogs independent, very small news organizations, let's call them a few years ago in the Apple v. Does case and Roger was saying that that incident of Apple suing someone civilly they perhaps applied pressure for the DA to go after the news organization criminally but what happened in the Apple v. Does case and can you make that relevant to the broader point of whether companies are using intellectual property laws as a hammer against news organizations or not?
>>Jennifer Granick: Right, well, in Apple v. Does the issue there was a couple of blogs that follow technology developments and technology news had published information about upcoming Apple products and they had received this information from somebody and Apple wanted to find out who the leakers were so it went about trying to uncover the anonymity, you're just, defeat the anonymity and to find out who these people really were and there were a couple of important issues that the case decided. One of which centered around the question of whether these kinds of blogs that were following Apple news were to be considered news outlets to be given the same kind of respect that we traditionally understand the First Amendment to give to the New York Times and to your more traditional times news outlet.
>>You talked about shield laws you can't disclose sources that kind of provision.
>>Jennifer Granick: Right, exactly, exactly and one of the things that was clearly decided in the Apple v. Does case and that Apple really didn't contest was that these outlets were indeed news organizations. That they were there for the purpose of disseminating information to the public and that they counted as journalists even though they were blogs that published primarily on the web. So, I don't think in the Gizmodo case there can be any question that Gawker and, you know, in general and Gizmodo in particular are considered to be news organizations that are entitled to exercise the shield laws and to whatever protection of source is they would ordinarily be entitled to a search under the First Amendment and other applicable state and federal laws. So, no question about that, right. So, and then I think the second issue of the intellectual property aspect in Apple v. Does is this question of what kind of response should courts have when there are allegations that some kind of trade secret or copyright violation or something like that has happened and in Apple v. Does the courts said look you have a lot of other things you need to do before we're going to require these outlets to disclose their sources. So, you know, it's sort of a recognition I think that in the modern ecology of news outlets that there are some responsibility, there's a limited amount of things in some ways that the courts can do and a lot of responsibility that falls upon the entity that wants to enforce the trade secret or protect the trade secret or force the copyright right to go about that, you know, and to take the burden of doing that and in Apple v. Does Apple lost, Apple didn't succeed in that so that taking the civil route there was not effective for them.
>>So, we have Roger saying essentially that Apple somewhat is trying to make journalism illegal and Jennifer is saying that Apple is trying to muzzle journalists and as soon as were prepared to give the other side chance to respond so, I'm going to turn to Bill who has represented trade secret companies or sorry companies with trade secrets, intellectual property litigator and a prominent one. One of the companies that he represented or organizations is DVD CCA which filed lawsuits trying to keep the code, the algorithm used to descramble DVDs a secret. I mean DVD John who went onto fame is a fellow who distributed that and but you try to keep on behalf of your client that information off the internet essentially.
>>William Coats: Certainly did. It's funny, so, I guess I'm the establishment representative here which is my role but I'm happy to make it because.
>>I'm glad you're not wearing a tie then.
>>William Coats: Well, you know, because I do work Palo Alto and have for 30 years, so, I have plus, you know, I'm kind oh, pooh and so but anyway, so the real issue is I disagree with all sorts of fundaments which, of course, is the nature of this. For example, are bloggers really journalists? Apple really didn't test in the case and there has not been a case, although it's going to be coming up I think pretty soon, to see are bloggers journalists? And if so, what is a blogger? How does one become a blogger and are we all journalists? I mean I Twitt and, you know, I've got a Facebook page and if I put something on there would that make me a blogger or if I put on my Twitter and said "Hi, I've got a great secret today" and get it put out there, you know, and am I now a journalist cause it goes out to the, you know, eight people who follow me but, you know, what exactly brings me within the ambit of that, so, from my perspective, I don't agree with even the fundamental, obviously Apple has issues, right, because its got a very tech savvy base of customers and can't afford to make them unhappy so it has to be careful in what it does as to all....
>>But is Apple acting reasonably, I mean, all we know so far is that they've, I think Roger wants to jump in but all we know so far is that Apple contacted the police and said hey, we have a phone that was lost, it could have been taken from my employee's pocket or it could've been lost in a bar and then but it's stolen property was not turned in, California law apparently requires you to turn it in so is Apple a bad actor.
>>I think the question is whether it's a bad actor or not, I think there's two underlying things. First is in the Apple O'Grady case, the Does case, the court of appeals actually did say that the bloggers, it didn't have to answer the question are bloggers journalists in the abstract but it did say they're protected by the First Amendment, they're protected by the First Amendment reporter's privilege and they're protected by the California Shield law which protects reporter's unpublished information and confidential sources and it specifically held that and that was disputed in the case, so, yeah it didn't in the abstract say, in fact, a court of appeals said weren't going to decide the limits of journalism here, that's not our job but applying those legal protections and found they did apply and I don't think the question is whether Apple is a bad actor per say, I mean, a lot of corporate entities have an interest in protecting their proprietary information. You can argue about what's proprietary. You can argue about what the best remedies are to protect that but in this instance, I think, the setup was there's a tension here and at some point the intellectual property protection and First Amendment are going to collide and it's kind of like where on the spectrum is the law going to come out as far as where intellectual property protection ends and First Amendment interests trump and we don't know the answer to that question.
>>But there's a criminal issue here that the underpins, there is a statute that says if you find stuff that you know belongs to somebody else, you have an obligation to return it, so, it's not, it may well be that this all gets resolved on a whole different plain, it's not a First Amendment issue when you have violated a statute; now, maybe that you can attack its constitutionality in its application.
>>If this was the New York Times, if somebody had found this phone, turned it over to the tech reporter for the L.A. Times who was one of the people who was involved in our coalition to unseal the search warrant affidavit had not charged for it and it was in a media outlet that was considered traditional and respectable and so on I think we'd first of all the court would have had a lot greater problem issuing the search warrant initially.
>>Jennifer Granick: That's right.
>>I think and I also think we would be talking about a situation where the state statute might be trumped by the First Amendment in its application in this circumstance. I don't know how that case will come out but certainly you have a debate about that, I mean, I think that there's a lot of argument you could make that when you start taking 1860 statute that's hardly ever applied, I mean, nobody ever thinks that you find a dog and the dog is worth over, what's the statute's limit?
>>Two-hundred dollars that if you don't find the rightful owner or try to and return it that you're criminally liable.
>>I love my dog.
>>Jennifer Granick: I have a dog, too, but I don't think we can underestimate the scope of the criminal law, I mean, this criminal law actually can be rather broad however you might feel about whether that's right or wrong and the idea that you are always going to be able to come up with some colorable reason why the recipient of information has violated some law. Either is was a receipt of trade secret, it was misappropriation of or copyright violation because somebody sent you a copy of it or it was, you know, receipt of stolen property but as I think about unless it has something to do with the digital nature of the information what if this property that was stolen, you know, if the phone itself is the information that is what is newsworthy, you think about receipt of stolen property and the Pentagon papers case it's like the paper is property, too, but we don't get all exercised about the idea that, you know, the New York Times was in receipt of stolen papers when it took possession of the Pentagon papers.
>>Because they had copies. They had copies.
>>Jennifer Granick: Well, that's a copyright infringement so...