Think Secret, trade secrets and our right to know

Much of the online commentary regarding Apple’s lawsuits against several rumour sites frames it in terms of whether the rumour sites are bona fide journalists. In doing so, they conflate Apple rumour-mongers with bloggers and run up the flag on the so-far endless debate on whether bloggers are journalists. That’s an issue near and dear to the hearts of many bloggers craving legitimacy, but in this particular case it’s a red herring: whether or not Think Secret et al. are legitimate journalists has nothing to do with whether they were right to publish Apple’s upcoming products or are protected from the consequences of doing so.

Jeff Harrell thinks so too:

Was [Think Secret’s Nick] Ciarelli pursuing a news story? If the answer is yes, then he deserves to be given an exception from the laws governing trade secrets. For example, if he reported that Apple was dumping toxic chemicals into the groundwater behind their corporate headquarters, that would clearly be an important story, one which the public would have an obvious right to know. It would also clearly be a trade secret. In that case, the public’s right to know trumps company’s right to protect its trade secrets.
But we’re not talking about illegal dumping here. We’re not talking about blowing the whistle. We’re talking about the disclosure of specifications and prices for upcoming products, details that were obtained by convincing Apple employees to break their confidentiality agreements.
Newsworthy? Hardly. Important? No. Was Ciarelli on the trail of The Truth, a latter-day Bob Woodward blowing the roof off of a massive scandal? No, he was not. He was soliciting trade secrets and publishing them. So I don’t see any reason at all why he should be exempted from the normal laws governing such activity.

The test, therefore, is not whether whoever’s doing the publishing is a journalist, but whether the public interest is being served by it. And that’s something that can only be determined by the legal system. News organizations that publish private details about celebrities — or even ordinary people — do get sued, and successfully: the test is not simply whether it’s a secret that people are interested in. Corporations aren’t people, you may reply — but corporations do have trade secrets. Hence NDAs and the law under which Think Secret is being sued. What if Google Watch received, and published, Google’s entire PageRank algorithm? I’ll bet we’d all find that very interesting — unless we owned once-valuable Google stock.

And reporters who do publish stories that blow the whistle and serve the public interest, but who fail to reveal their sources, can get into trouble anyway (though in that case it was a public inquiry, not the leakee looking for blood). Journalists are sometimes threatened with jail for not identifying sources (in the context of criminal trials resulting from their reporting). Why should rumour sites get a free pass just because they’re making ad revenue off of our eagerness to find out what Steve is pulling out of his sleeve next?

It’s hard to see how learning about upcoming or unreleased Apple products a little earlier than the formal announcement serves the public interest. If you think it does, you probably need more hobbies.