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Apple failed to do due diligence in trade secret case
9/14/2005 6:18:29 PM, by Ken "Caesar" Fisher
Documents (PDF) unsealed in Californian state court suggest that Apple failed to comply with the state laws when they legally pressed AppleInsider and PowerPage to reveal their sources. In March of this year a judge ruled that the websites will have to cough up the names of their confidential sources in response to lawsuits filed by Apple over product leaks. The sites had reported insider information in December 2004 on a supposedly upcoming product from Apple called "Asteroid," which some people believe is a FireWire audio interface for GarageBand.
Apple's lawyers immediately went after the sites, subpoenaing them to reveal their sources. The defendants responded that they were journalists, and were protected by California's shield law.
Apple argued, in part, that the defendants violated the Uniform Trade Secrets Act (USTA), through the "acquisition of a trade secret of another person who knows or has reason to know that the the trade secret was acquired by improper means." However, Apple looks to have jumped the gun, and gone straight for the jugular without checking in on their own employees. According to Californian law, Apple could only subpoena the journalists in question after having conducted a thorough in-house investigation. The EFF, which is defending the journalists in question, says that Apple dropped the ball.
"The First Amendment requires that compelled disclosure from journalists be a last resort," said EFF Staff Attorney Kurt Opsahl. "Apple must first investigate its own house before seeking to disturb the freedom of the press."
It appears that Apple has adopted a shoot-first, ask questions later approach to dealing with rumors sites. The company took no depositions, required no oaths from its employees, and failed to subpoena anyone related to the company or the development of the device in question.
Now the public can examine this new information, which clearly shows that the only computer forensics conducted by Apple were a search of Apple's email servers and a rudimentary examination of a single file server. Apple did not examine employees' individual work computers or other devices capable of storing or transmitting electronic information, examine any telephone records, look at copy machines, or otherwise investigate the possibility that information about "Asteroid" was transmitted by means other than email. Moreover, as public documents already showed, Apple did not even obtain sworn statements from employees who had access to the leaked "Asteroid" specs.
This is particularly alarming because Apple had attempted to argue that their internal investigatory procedures were trade secrets themselves. It looks like the secret was that they didn't do anything.
What's next? It's not clear, but I would expect that the arguments may now turn to the question of whether or not the defendants qualify as journalists, something that has largely been sidestepped so far.
9/14/2005 6:18:29 PM, by Ken "Caesar" Fisher
Documents (PDF) unsealed in Californian state court suggest that Apple failed to comply with the state laws when they legally pressed AppleInsider and PowerPage to reveal their sources. In March of this year a judge ruled that the websites will have to cough up the names of their confidential sources in response to lawsuits filed by Apple over product leaks. The sites had reported insider information in December 2004 on a supposedly upcoming product from Apple called "Asteroid," which some people believe is a FireWire audio interface for GarageBand.
Apple's lawyers immediately went after the sites, subpoenaing them to reveal their sources. The defendants responded that they were journalists, and were protected by California's shield law.
Apple argued, in part, that the defendants violated the Uniform Trade Secrets Act (USTA), through the "acquisition of a trade secret of another person who knows or has reason to know that the the trade secret was acquired by improper means." However, Apple looks to have jumped the gun, and gone straight for the jugular without checking in on their own employees. According to Californian law, Apple could only subpoena the journalists in question after having conducted a thorough in-house investigation. The EFF, which is defending the journalists in question, says that Apple dropped the ball.
"The First Amendment requires that compelled disclosure from journalists be a last resort," said EFF Staff Attorney Kurt Opsahl. "Apple must first investigate its own house before seeking to disturb the freedom of the press."
It appears that Apple has adopted a shoot-first, ask questions later approach to dealing with rumors sites. The company took no depositions, required no oaths from its employees, and failed to subpoena anyone related to the company or the development of the device in question.
Now the public can examine this new information, which clearly shows that the only computer forensics conducted by Apple were a search of Apple's email servers and a rudimentary examination of a single file server. Apple did not examine employees' individual work computers or other devices capable of storing or transmitting electronic information, examine any telephone records, look at copy machines, or otherwise investigate the possibility that information about "Asteroid" was transmitted by means other than email. Moreover, as public documents already showed, Apple did not even obtain sworn statements from employees who had access to the leaked "Asteroid" specs.
This is particularly alarming because Apple had attempted to argue that their internal investigatory procedures were trade secrets themselves. It looks like the secret was that they didn't do anything.
What's next? It's not clear, but I would expect that the arguments may now turn to the question of whether or not the defendants qualify as journalists, something that has largely been sidestepped so far.
Remember, kids, Microsoft's EVIL.
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