My name is danah boyd and I'm a Principal Researcher at Microsoft Research and the founder/president of Data & Society. Buzzwords in my world include: privacy, context, youth culture, social media, big data. I use this blog to express random thoughts about whatever I'm thinking.

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sidestepping the question

Well, a decision came down on the the EFF / Apple blogging case and it’s a little disturbing. Basically, they ruled that no one (digital or paper) journalists have the privilege to protect their sources when trade secrets are involved. In other words, the rights of companies trump the First.

This sidesteps the blogger vs. journalist question entirely. Which is partially good because, like i said, it’s the wrong question. But, it’s partially bad, because people didn’t declare it to be the wrong question, just one worth sidestepping.

As far as the case is concerned, i’m concerned. On one hand, i understand that people shouldn’t have the right to leak information that they know is private and expect protection. On the other, the reason that the First exists is to protect powerful systems from oppressing the people under their structure. In other words, it’s OK when information from inside the government is leaked because it’s a matter of checks and balances. But there are no checks and balances for corporations right? What constitutes a trade secret? How can you tell? Now we have two loopholes to allow for continuous oppression – trade secrets and government security. And you can’t even actually check this. It may be true in a few cases, but there’s so much room to be abusive.

Goodbye dear freedoms… it was nice knowing you…

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6 comments to sidestepping the question

  • James

    First amendment rights are not, and never have been, absolute.
    But neither are trade secret rights. There are also fairly clear legal definitions for how trade secret law applies, and what a trade secret is. Though the definition of trade secrets varies, I can’t imagine any jurisdiction where secret inside information concerning unannounced products is not considered a trade secret.

    On the other hand, you can’t just declare something to be a trade secret and then go about suing people over it. Whistleblower protections are extended to people that expose inside information that concerns the public good, or illegal activity. The ruling in this case is not above these laws. Nothing had changed. Businesses don’t suddenly have any more power than they did. If trade secrets are a tool for oppression, they must have always been.

    I think that much of the hype around this case is overblown, in a smart move by the sites in question to throw up a lot of strawmen.


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  • I’m actually not so concerned about this one. It definitely has some common themes to similar limits-of-freedom type stories (e.g. FEC “cracking down” on blogging+politics), but the similarities end there.

    First, to answer your question: “What constitutes a trade secret? How can you tell?” Generally, a trade secret is anything that if were public knowledge would affect your ability to conduct business (or “profit” — which if you consider a dirty word, should be read as “to not go out of business”). There are some types of trade secrets which could be protected through other means (patents could have been used to protect Kodak’s silver-bromide based film); and there are some that can’t be protected (I suspect Coca Cola’s recipe wouldn’t be protect-able — but there, it’s brand that’s valuable now.) Trade secrets usually have to be closely-held, too: Apple will have a hard time declaring it a trade secret if all 10,000 local employees knew the “secret” of the new iPod’s price. (*This*, btw, is why Apple should care about who revealed this secret — it should be someone who closely held the secret, that is, someone they really, really trust, who revealed the secret.)

    Now, on to why requiring a journalist (or blogger, or any individual) to reveal sources can be good. And I do mean “good” — as in, for the benefit of capitalism, which should translate into the benefit of individuals (the “public”) in a capitalistic system. Take an extreme case — let’s say I interview someone who claims and convinces me he’s the BTK killer; and I write an expose with revealing his identity on this for the NYTimes. Let’s argue that I get subpoenaed for the identity. Should I have to provide it? Clearly, yes; otherwise in a twisted way I’m a conspirator in any future BTK murders, as I have knowledge that I knew could have prevented a murder, and that I could have acted upon to prevent the murder. We now have a boundary case on one side, that is, we have a scenario in which forcing me to reveal my sources is good. I’ll skip a scenario of the other side, since it’s obvious — but the point here is that being forced to reveal sources has no closed-book, black-or-white answer — the answer is “it depends.”

    The law likes bright lines. This area of journalism still has many gray lines — thus why we’ll be getting many interesting cases in this area for the next decade. In this case, what the judge said is that there has to be an element of the public’s interest to afford any protection to the journalist. If it’s “good” for the public’s interest for the sources to remain anonymous (as in an inside tipster in a toxic dumping case), then that’s acceptable. If it’s “good” for the public’s interest for the source to be exposed (as in the BTK murders), then it’s “good” for the public’s interest.

    What I believe is confusing most people here is that we think of “protecting sources” as “good”, when the right question is “Which is better for the public — protecting, or exposing, the source?” In this case, it’s clearly the later: protecting the ability of a business to “make profit” (e.g. not go out of business) can benefit the public. There is also no part of Apple’s case where protecting the sources could benefit the public.

    Case closed. The judge is right to have ruled in Apple’s favor; and you should have been worried if it had been ruled the other way.

  • I am glad they finally clarified it. Athough I think Apple is shooting themselves in the foot by prosecuting their own fans, I am glad that bloggers and journalists were finally lumped together. Now that we are on equal footing (at least in this case) it may allow us to hold McCain and Feingold to their promise of not regulating the blogosphere to extinction (when it comes to politics at least). Selah?

  • some guy

    Western civilization is based on rule of law. In civil rather than criminal cases, mostly on contract law.

    A company can chooses to keep private “trade secret” or choose to reveal with the use of patents and copyrights.

    In this case, there is nothing to do with the public good….environmental dumping, worker exploitation, discrimination….how a company behaves with respect to the common good. In these cases, an employee revealing secrets should not be prosecuted.

    This case has everything to do with privacy and secrecy. And that is not always a *bad* thing. I know that some people would like everything to be “transparent.” Well, sometimes, that’s not always the best thing in the world, especially for the creative process. What if, say for instance, you were watching every instant of a horror movie getting produced, from the special effects, to the screenplay, to the composer’s thoughts behind each crescendo in the soundtrack…everything about the movie was “transparent.” How surprising would it be? How effective would the horror and jumpy spots be? Do you really want a world in which you are never surprised? Where everything is known at all times???

    People say well if the NYT had published this, Apple would never have gone after it. More likely, even if the NYT had come across this information, it most likely would not have published it, as a matter of ethics. They do teach certain things in journalism school.

    Some things can never be taught, some things can never be codified into law. But, if you go with the golden rule, it’s really hard to go wrong. Think to yourself “If I were Apple, would I want someone to reveal my creative secrets illegally…would I want to have people working for me who couldn’t keep secrets…how would I feel if I were an engineer and the thing I was working on got published to the outside world, and my competitors made a product ahead of me and all my hard work was for naught”

    Freedom isn’t a binary black white… with freedom comes responsibility… and the responsibility includes thinking about the world you want to live into, and how you’d like people to behave. That includes keeping private those communications that are essential to the integrity of the entity, especially when one has agreed, legally, to keep such communications private.