...this case is not about who can practice journalism legally but about a practice of journalism made illegal...

Judge says: Journalists have no protection from trade secrets laws therefore the entire is-a-blogger-a-journalist debate is moot.

by Tom Foremski for SiliconValleyWatcher

Apple Computer has unleashed a Pandora's box of problems for the entire news media in its attempts to stomp out leaks on future products, some as mundane as a cable interface.

A ruling made on Friday by Santa Clara County Superior Court Judge James P. Kleinberg found in favor of Apple, that journalists for three online news organizations must reveal records that could pinpoint who leaked product information.

And what is Apple's super-duper must-be-protected-at-all-costs product? The product mentioned on the first page of the ruling is: "A FireWire audio interface for GarageBand, codenamed "Asteroid" or "Q7." GarageBand is free music software bundled with Apple's consumer computers. FireWire is an Apple-developed technology that allows cables to transmit large amounts of data at high speeds.

It would seem that this product is not a trade secret, but something that would be expected from the public's current knowldege of Apple. The judge set aside such issues for later; but said that leaking product information is a crime.

The ruling could give corporations unprecedented levels of control over the timing of media coverage.

It's got nothing to do with bloggers says the Judge... many, many times.

Lawyers for both sides made opposing claims about whether or not bloggers were journalists; and debated the legal protections available to journalists. The judge made it crystal clear that his ruling had nothing to do with the issue of who is a journalist.

He said that a crime had been committed through the revelation of trade secrets; and that no one is protected from prosecution. CNET News.com story quotes the judge:

"The bottom line is there is no exception or exemption in either the (Uniform Trade Secrets Act) or the Penal Code for journalists--however defined--or anyone else."

From the ruling (a 13-page Word document), you can see how many times the judge pounded on the fact that if you committ a crime, you are a criminal. It does not matter if you are a blogger or a journalist. He had to say it in a number of ways:

• "...the United States and California Supreme Courts have underscored that trade secret laws apply to everyone regardless of their status, title or chosen profession. The California Legislature has not carved out any exception to these statutes for journalists, bloggers or anyone else."
  
  

• "...the definition of a journalist, reporter, blogger, or anything else need not be decided at this juncture for this fundamental reason: there is no license conferred on anyone to violate valid criminal laws."
  
  

• "Let there be no doubt: nothing in this order is meant to preclude the exchange of opinions and ideas, speculation about the future, or analyses of known facts. The rumor and opinion mills may continue to run at full speed. What underlies this decision is the publishing of information that at this early stage of the litigation fits squarely within the definition of trade secret. The right to keep and maintain proprietary information as such is a right which the California legislature and courts have long affirmed and which is essential to the future of technology and innovation generally. The Court sees no reason to abandon that right even if it were to assume, arguendo, movants are "journalists" as they claim they are."
  
  

• "Reporters and their sources do not have a license to violate criminal laws."

Incredibly, the vast majority of the news coverage of the case continues to focus on the issue of whether bloggers are journalists.

Foremski's Take: This case challenges the very core of journalism: the time honored practice of finding scoops, of ferreting out exclusive news stories on business plans, on big product launches, etc. Away from the stage-managed and media-controlled official announcements.

If you ask any journalist what they want above all else, it is a scoop, or a hard-won exclusive story on something highly anticipated by everyone--and the other hacks have to quote your story, because they can't get to it through their contacts. It is hard to do; and there are no short cuts. But if this promise of occasional exultation in the pleasure of a scoop is taken away because it might illegally reveal trade secrets, then there will be a mass exodus from the news reporting ranks. IMHO.

cd1435