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Dave, I understand the emotional weight of this argument, and the civic value of a free press and its importance to democracy.

I don't think having a Big Comany sue a Little Guy is bad for democracy.

First, I think it's specious to offer the assertion "that they wouldn't have sued a Big Company like The Globe," because there is simply no way to be certain what they might have done in those circumstances.

Second, this is not a case about democracy. This is not a story of governmental abuse of authority or shirking of responsibility. This story strictly deals with commmercial information.

Third, this is not a story about a company doing something nefarious that harms consumers and that seeks to withhold information regarding those nefarious activities from the public for its own advantage, or to avoid damage to its reputation.

Fourth, this is not a story about a diligent, earnest journalist seeking to unearth the truth in the service of the public trust. This is the story of a college student who seeks to exploit the high level of attention Apple receives for its secretive product development plans in order to draw attention to himself and to earn money from the sale of advertising.

Fifth, in a democracy, it is usually incumbent on citizens to be responsible for their actions. If you read Mr. Ciarelli's web site, he was basically soliciting for people to violate their NDAs and offering to hold their identities confidiential. Presumably he had the means and the wherewithal to make good on this offer. Apparently he did not, and his sole argument rests on the legally invalid, but emotionally appealing "But I'm just a little guy!" defense.

I think making a big deal about some young man getting sued for publicly diseminating confidential, proprietary information to which he was not entitled, solely for his personal gain and to satisfy an obsessive curiosity on the part of some people, does a disservice to the idea of a free press and the genuine threats it faces in our democracy.

"I think making a big deal about some young man getting sued for publicly diseminating confidential, proprietary information to which he was not entitled, solely for his personal gain and to satisfy an obsessive curiosity on the part of some people, does a disservice to the idea of a free press and the genuine threats it faces in our democracy."

Why do you think that?

"confidential, proprietary information to which he was not entitled"

Luckily there is nothing wrong morally or indeed legally with disseminating and distributing this sort of information.

Hi Dave,

I view the issue more like Dave Rogers. After reading the article I posted the following email to Alex:

"Alex,

The outrage at Apple's actions against Think Secret is in the same place were america is putting it's outrage at greed, desacrtating the envioment, and having all our copyright, patent and civil rights trampled. We are only in the beginning stages of a Singapoian Capitalism. America is regressing to the ninteenth century with a vengence.

You are throwing away bandwith on Think Secret. You could find much better targets for your outrage. The Huns are in town and you are worried about the horse shit in the streets.

Roger Harris
roger@rogerdharris.com"

Luckily there is nothing wrong morally or indeed legally with disseminating and distributing this sort of information.

Except there is. Morally, it may be a lightweight issue, but there is a legal definition of trade secrets, and at least some of the information Ciarelli posted was of that kind. In most states, this is against the law. This fact is continually overlooked in the defences' arguments, in favor of FUD about chilling effects and the erosion of democracy.

Exceptions can be and have been made when such information is in the public interest, (Enron, Big Tobacco, the Pentagon) but the judge in the previous [ThinkSecret] case pointed out very clearly, there is a difference between "the public interest" and "the interest of the public".

Why do you think that?

Because it trivializes the issue of free speech. And it trivializes the role of a free press.

In our zeal to regard ourselves as stalwart defenders of liberty we lose sight of what those liberties really mean. You don't have the right to yell "Fire!" in a crowded theater, so there is no absolute right to free speech. More specifically, there is no license to exercise speech without consequences.

We focus on Apple vs. Ciarelli because it has an undeniable "David versus Goliath" archetypal appeal. We enjoy skewering Apple because we love it when others' heroes might be shown to have feet of clay, regardless of whether the particular perception has any basis in reality.

Meanwhile we have a press that is easily cowed by a hostile administration. We have a press that has lost much of whatever credibility it once had. We have an outstanding question with respect to the Valarie Plame affair.

And yet we want to focus on some kid who was trying to make a few bucks trafficking confidential information.

"confidential, proprietary information to which he was not entitled"

Luckily there is nothing wrong morally or indeed legally with disseminating and distributing this sort of information.

So presumably you would not object if someone gave me your social security number and I posted it on my web site? Or perhaps your medical records? Maybe the names and addresses and medical histories of your family members?

Corporations are afforded many of the rights of individual citizens. This can be problematic, but I think, in the main, it mostly serves a legitimate interest. In a competitive environment, companies are allowed to keep their secrets and to try to control how their information is shared. And there are serious moral and legal issues attendant to violating those rights.

So I think you're just wrong. Luckily for all of us.

Umm...first things first. ThinkSecret.com is not, NOT, N-O-T a blog. Never has been. I get so sick of hearing "Apple vs Blogger".

Unless you misclassify a "blog" as "web site of any kind that is owned & operated by one person."

That said, I think Apple has every right to use any legal means available to prevent people from publishing illegally obtained, confidential company documents and information.

However...since Apple is claiming that its "internal investigation" into the supposedly small number of employees who had access to the documents was fruitless...I'd really like to know if they subpoenaed their *employees'* personal email and phone records before running off and subpoenaing Mr. Ciarelli's. Somehow I doubt it.

By the whacked-out logic employed by Mr. Beam, it is perfectly permissible for anyone to take any information and disseminate it to the public -- it doesn't matter if we're talking about the formula for Coca-Cola, identity data for every member of the Beam family, top-secret blueprints for Boeing's next new airliner, or whispered specs for Apple's next iMac revision. After all, this is all just "finding and publishing information that institutions don't want to reveal."

I do not expect Mr. Beam to have the fortitude to stand by his argument, because his position is built on a flimsy argument -- namely, that all information should be treated the same, just because SOMEBODY wants to keep it a secret. In the real world, of course, we don't work that way; context has to be considered, to separate information that the general public NEEDS to know from information that (rightly) should be kept private.

Or, as Judge Kleinberg wrote in his ruling against Think Secret, "Unlike the whistleblower who discloses a health, safety or welfare hazard affecting all, or the government employee who reveals mismanagement or worse by our public officials, (the enthusiast sites) are doing nothing more than feeding the public's insatiable desire for information ... an interested public is not the same as the public interest."

The only point Mr. Beam's column successfully demonstrates is that the Boston Globe is not very discriminating in its choice of columnists.

--R.J.

Sure Apple was within its rights to sue. So what? What Apple is claiming as a trade secret was a simple product announcement of the sort that are "anticipated" in industry insider columns every week. Those guys don't get sued because they work for media with lawyers who would fight back. Ciarelli was sued not because he disclosed a trade secret but because he disclosed a PR secret Apple didn't want disclosed and because he is a small guy. Apple sued him presumably precisely to have a chilling effect. So, I actually don't care whether what he disclosed was technically a trade secret. I care that Apple chose to sue because Apple hopes to intimidate all of us small-timers.

The Mac's a great product, but Apple remains an over-controlling company oddly hostile to its customers, and it'd help if its customers didn't give them a pass on it.

IMO

It'd be helpful if Technorati apologists wouldn't give Technorati a pass on claiming to be the "authority on what's happening in the blogosphere," while simultaneously disclaiming any responsibility for anything its service provides.

If you want to bitch about Apple, fine. I've been a customer for more than 20 years and they haven't been hostile to me. Maybe they're being unfair. It's not the first time the world has been unfair.

But to return to the point of your post, in my opinion, this is emphatically not a free speech issue.

Technorati does violence to the notions of authority and responsibility in the service of marketing and that's cool because they're part of the "bottom-up" "folksonomy-generating," "self-correcting" "blogosphere."

That's not a free speech issue either, but it bothers me a lot more than some kid getting sued because he tried to make a few bucks posting confidential information. He'll have his day in court. Technorati? Well, talk is cheap.

Dave, what's the technorati complaint refer to?

And who said this was a free speech issue?

The Technorati complaint refers to Technorati's assertion on their About page that they are "the authority on what's going on in the world of weblogs."

On their Terms of Service page, they specifically and in all caps disclaim any responsibility for anything their service offers.

So, which is it? Are they "the authority" or are they just another web services company trying to compete with other web services companies by making baseless claims that promote the image of greater "authority" than their competitors? If they are "the authority," then what is their responsibility to their customers? What is authority without responsibility? Seems like a prescription for either fraud or autocracy.

Sure, it's only "marketing-speak," and "legalese," but we seem to have only the most tenuous grasp of the meaning of the word authority, and the accompanying concepts of responsibility and accountability in this society; and it irritates me that a company can blithely toss the word "authority" around without regard to its meaning merely to try to achieve some competitive advantage.

Further, as you know, they characterize their ranking of referring weblogs by something they term "authority." They infer from the number of inbound links a weblog's relative "authority," which seems to me to be so tenuous a basis as to be meaningless.

As to whether or not your original post referred to a free speech issue, your reference to whether or not this was "good for our democracy" places the issue in a political context, which seems to imply a reference to the right to free speech. Most complaints regarding Apple's action make appeals to the First Amendment right. It seemed reasonable to infer your post also cast this issue as a First Amendment issue.

If that was not your intent, I'm sorry I didn't clearly perceive your meaning. I don't see how it materially alters anything, though. It's not "bad for our democracy."

Agreed with Rogers, Harris, Matt.

By the by, you describe Beam as "a Boston Globe columnist who frequently makes me uncomfortable because of the personal nature of his attacks."

Is he attacking you? (and thus you are uncomfortable?)

Any other examples? In four thousand blog posts you've mentioned him once, according to Google's indexes. In 2002 you wrote: "I usually find his writing just plain old provoking."

Are you against the very notion of trade secrets?
If not, say so.
If yes, then do you think trades secrets can be stolen?
If they can be, what punishment should the distributors of trade secrets be given when they are of no public interest?
In the same vein, could you solicit and *knowingly* distribute stolen goods?

Dave, you are way more exercised by Technorati's use of the term "authority" than I am. Saying they are the "authority" on blogs on their home page is indeed marketing-speak which I take to mean that they are the best source of info, not that they're claiming to be the ones in control of blogs; you can be "an authority" without being the sort of Authorities who can demand to see your papers. I'm not crazy about their use of "authority" in the "cosmos" context, but there the term means not just how many links but how many links from many-linked sites, i.e., roughly the metric Google uses. I don't at all see the relation to whether they're doing a good job supporting their API, which is an issue worth discussing but irrelevant to the term "authority." If someone says she's the authority on a topic, we expect her to know a lot about it and to be honest in what she says about it. I think technorati passes those tests, no matter what the state of their APIs.

As for free speech: We could have a society that is perfectly law-like and still not be an optimal democracy. For example, politicians could sue newspapers with such frequency that newspapers go out of business because of the legal fees. Everyone is within their rights in this made up example, but the practice is bad for democracy. That's how I feel about Apple suing this guy: They're within their rights but when big companies do this, it hurts (my vision of) what a vibrant democracy should look like.

Jon, Beam has never attacked or mentioned me. But he often personalizes issues, attacking people more savagely than I like to see. So, he often makes me uncomfortable. But I think I'm missing your point.

Anona, I'm not against the notion of trade secrets. (I think companies are often ridiculous in what they claim to be a trade secrete, however.) I do think trade secrets can be stolen. It happens. The punishment has to be context dependent of course. And, yes, there are certainly circumstances in which I would solicit and knowingly distribute stolen goods, but I don't want to get lost in an argument over hypotheticals ("Suppose we're at war and you can sneak behind enemy lines and steal their ammunition..."). The issue here is, once again, that in this case, we have a large company suing an individual for doing something that the company would not have sued Alex Beam for doing. Apple is within their rights to do so, just as I am within my rights to be a complete asshole, but we'd all rather not live in a world where everyone exercises that particular right.

Comparing a 19 year old disseminator of stolen commercial secrets to freedom of speech is quite a stretch of the imagination. Woodward or Bernstein he is not. Think Secret is a commercial entity that receives advertising money for it's services and is not a blog but a tabloid. The Bush administration has provided enough material to keep any real journalist busy for years. He and the Boston Globe, owned by it's "Big Daddy" The New York Times, are just trying to improve their circulation. Beating the drum in this case diverts attention from more serious abuses.

Apple is not suing Think Secret in a punitive, "chilling effects" way. Nor is Apple claiming damages due to the release of information.

Apple wants to know where the information came from, because someone who provided the information broke a non-disclosure agreement, and Think Secret won't say who this is. So Apple had to sue them to find out.

Fair enough, in my mind. Think Secret is free to write whatever they wish, but if they traffic in information obtained through other people breaking legal contracts, it shouldn't come as a surprise to Think Secret that the law would get involved.

Again, if this were a matter of public good, the court would have found for the benefit of Think Secret not having to disclose the source, but it isn't about public good. The First Amendment isn't a complete license, as demonstrated by libel and trade secret laws.

Think Secret is hardly an innocent victim of corporate litigation.

"not that they're claiming to be the ones in control of blogs; you can be "an authority" without being the sort of Authorities who can demand to see your papers. I'm not crazy about their use of 'authority' in the 'cosmos' context,"

This is getting lost in the dying gasps of an exhausted and exhausting topic, but allow me to get another word or fifty in here.

I didn't mean to imply that I regard Technorati as asserting any measure of "control" of blogs. I'm objecting to the claim of being "the authority on what's going on in the world of weblogs," i.e. someone with special knowledge that may be relied upon by virtue of some unique qualification or special charge. Your doctor might claim to be "the authority on what's going on" in your body by virtue of his education, certification and licensing. He is also bound by a code of professional ethics, and he has certain responsibilities for which he may be held accountable in the exercise of his authority.

Technorati is just another web services company. It has no special charge, no unique qualification, and yet asserts they are "the authority." I know it's marketing-speak, but it's marketing-speak that harms important concepts, especially when they specifically disclaim any responsibility. If they just offered that they were "the best source of info" I wouldn't care. I wouldn't believe that either, but I wouldn't care.

I think so many of our problems stem people believing words mean what they want them to mean or think they should mean, words like "freedom" and "threat" and "security" and especially, "authority." No one plays more loosely and contributes more to the fog of confusion that surrounds us and allows us to be emotionally manipulated than marketers and their distortion of language and meaning to serve selfish and mercantile ends.

Markets are not conversations. The world is not flat. And Technorati is not an authority on anything for which it accepts no burden of responsibility.

In my ever so humble opinion.

Ok, it is already a long debate, but if you don't mind I'll step in.

Dave, markets may not be conversations.
But it is actually true the contrary.
Conversations are markets of meaning.
I don't know if you will buy my argument, but really a meaning is created by way of conversation and cristallize in a society till a language is formed and dictionaries are collected.

It is wiered but there are actually authors of dictionaries, and this turn them into an authority
for a lanugage.

So yes it is amazing how we are loosing the concept of 'author' and authority therefore, but it's only because this huge conversation simply never stop.

Nick Robbins: "Morally, it may be a lightweight issue, but there is a legal definition of trade secrets, and at least some of the information Ciarelli posted was of that kind. In most states, this is against the law."

Perhaps we misunderstand each other about what Ciarelli posted. If you believe he posted information that he had sollicited knowing that it was a trade secret, you are probably right to claim that he acted against the law.

Dave Rogers: "Because it trivializes the issue of free speech."

I am not sure what the "issue of free speech" is.

"We focus on Apple vs. Ciarelli because it has an undeniable "David versus Goliath" archetypal appeal."

Please speak for yourself.

"So presumably you would not object if someone gave me your social security number and I posted it on my web site? Or perhaps your medical records? Maybe the names and addresses and medical histories of your family members?"

I really don't see what this has to do with the issue at hand. First of all, the examples you post are privacy related. Apple has no right to privacy.

Second, whether or not I would object hardly matters. Presumably Apple would object to any leak of any information they want to keep in-house. Whether or not they should be able to keep secret everything they want to keep secret is a different matter altogether.

The same goes for people. There are some things I do not want others to know. Some of these I have a legal right to keep secret. Others, I merely have a moral "right" to keep secret. And then there are things I would object to getting out, but for which there is really no moral or legal right to secrecy.

Further, in case of medical records it is clearly understood that MDs are bound by doctor-patient confidentiality. In contrast, it is not clearly understood that all information about future Apple products can only be obtained by breach of trade secrets, or that this indeed is the case in the Ciarelli case.

(As far as my social security number is concerned, I guess these things differ between the US and the Netherlands. I am an entrepeneur, and in my country a person's VAT number is the same as his social security number. If I have billed you in the past, you have already got my social security number.)

"In a competitive environment, companies are allowed to keep their secrets"

No, they are not.

"and to try to control how their information is shared."

Indeed they are. Once the cat is out of the bag though... (And yes, I am aware that solliciting trade secrets is illegal to--I am not arguing that.)

I won't go into your only-good-speech-is-worthy-of-protection type arguments, other than to say I disagree.