Earlier this month, a judge in California ruled that three bloggers must divulge the source of information posted on their websites. The information detailed soon-to-be released Apple hardware, and had been leaked by Apple employees. The bloggers claimed that they were protected from having to testify by California's "shield law." But the judge said that no journalist, online or other, could bow out of an investigation that had to do with trade secrets. Bob talks to internet law maven Susan Crawford about the ramifications of court-endorsed secrecy for journalism.
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BOB GARFIELD: There aren't a lot of companies who can claim the number of fan newsletters, fan chat rooms and fan websites that Apple Computer can. Last year, a few of those sites offered leaked details about a soon to be released Apple device. Apple responded with a lawsuit for the alleged leakers and a subpoena for the bloggers who posted the details. The bloggers said that California's so-called Shield Law exempted them from having to divulge their sources. Suddenly, the internet was abuzz with speculation about whether the judge would agree, setting a precedent for treating bloggers as real journalists. In the end, the judge sidestepped the issue, ruling this month that the leaks clearly involved trade secrets, and that no journalist online or otherwise, has the right to shield that kind of leaker. Joining us now is Susan Crawford, professor of internet law at Cardozo Law School. Susan, welcome to the show.
SUSAN CRAWFORD: Thanks so much Bob. It's great to be here.
BOB GARFIELD: It's very easy to invoke any business information as a trade secret. I know myself from grim experience that you call Procter & Gamble and ask how's the weather in Cincinnati and they say, I'm sorry, Bob, that's proprietary.
SUSAN CRAWFORD: Well, it's funny you should mention Procter & Gamble, because 15 years ago, they came under a lot of public scrutiny for claiming that information that had been leaked to a reporter was trade secret information, and that they would have to go after the reporter's phone records. They came under so much scrutiny that they backed off. It's very true that anything can be a trade secret. The barriers are alarmingly low.
BOB GARFIELD: And is there any mechanism outside of a lawsuit for determining whether something is legitimately called a trade secret?
SUSAN CRAWFORD: No, that's the problem. A court has to determine whether a company took adequate measures to protect the secrecy of whatever fact is at issue and has to figure out whether a confidential relationship was breached. So it's difficult to determine the strength of a claim of trade secret without a court getting involved.
BOB GARFIELD: And yet there is a long history of traditional media going to some lengths to publish trade secrets, and I'm thinking of the automotive press and the glee with which they take automotive prototypes and they find pictures of them on proving grounds around the world, and then they publish them in their magazines. Has litigation ever flowed from that kind of scoop?
SUSAN CRAWFORD: No, companies rarely litigate, because they depend on the media. They don't want to be seen as ogres, suing the reporters who are, in fact, making their name.
BOB GARFIELD: The judge wrote that, unlike government whistleblowers disclosing serious threats to public safety, for example, the bloggers, (quote) "are doing nothing more than feeding the public's insatiable desire for information." Well, [LAUGHS] it's an odd observation, because Susan isn't the journalist's job more or less to "feed the public's desire for information?"
SUSAN CRAWFORD: That's exactly right. This judge doesn't see the online world as a serious civic forum, which in fact is what it's become, and so he says this isn't journalism. I think of journalism as an institution telling me what the facts are. This is something much more casual that doesn't deserve protection. So the judge sees a very serious trade secret on one side, and on the other side, he sees a bunch of people in pajamas eating noodles, and he can't take those people seriously.
BOB GARFIELD: Isn't this a bit of a slippery slope, when a judge is determining what constitutes newsworthiness and what does not?
SUSAN CRAWFORD: Well, that's a slope that judges go down all the time in many different contexts, so I don't see that as a slippery slope, in this particular instance. In this case, we have a very serious trade secret, you know, a new piece of machinery that they're about to release, the identity of which, if known to their competitors, could give their competitors a head start on developing something that would knock out their market. If you read this decision as limited to its facts, the sky is not falling. Not a big deal. If you read the decision as saying: any trade secret trumps the First Amendment and the reporter is privileged, then we're in big trouble. I think the larger trend I think we have to be concerned about is the increasing propertization of American society, and the increasing secrecy with which government and companies do their business. So, my fear is that this case be read as something much broader than what it is, which - standing by itself - is a reasonable decision about a key Apple trade secret.
BOB GARFIELD: All right, Susan, maybe the slope isn't slippery, but let's take a walk up it, if we can. There is a subsidiary of Halliburton that was accused of over-charging for its services in Iraq, and it had apparently withheld some information from UN auditors with the help of the Pentagon, which allowed heavily redacted documents to go to the United Nations. And the rationale was that the information could be, (quote) "used by a competitor to damage the company's ability to win and negotiate new work." Now, is that a legitimate invocation of a trade secret?
SUSAN CRAWFORD: In my mind, no. In fact, that case shows that the First Amendment is being destroyed by this trend of propertization in American law. Halliburton is the government for many purposes in Iraq. What it does should be the object of a reporter's scrutiny. To be able to launder your information through the government's confidential treatment statutes and then come out the other end saying, oh, this is confidential competitive business information means reporters are completely stuck. They can't write a story that would reveal something important about what our government is doing in Iraq. To me, that's a shameful use of American law.
BOB GARFIELD: Okay, well Susan. Thanks very much.
SUSAN CRAWFORD: Well, thank you very much, Bob. I appreciate and enjoyed that.
BOB GARFIELD: Susan Crawford teaches internet law at Cardozo Law School in New York. You can read her thoughts on media and law at SCrawford.blogware.com.
BROOKE GLADSTONE: Coming up, whistleblowers and their discontents.
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