The attorney representing Nick Ciarelli, owner and publisher of Mac
enthusiast site ThinkSecret.com, is going on the offensive against a lawsuit
filed by Apple lawyers.
Terry Gross, a partner in the San Francisco-based Gross & Belsky LLP, plans
to file a motion in February to dismiss the case with the court on the
grounds of First Amendment rights, as well as seek sanctions against Apple for
legal costs already incurred.
Apple filed the lawsuit in the Superior Court of California, County of Santa
Clara, Jan. 4, against 19-year-old Harvard student Ciarelli and his company,
dePlume Organization, LLC, for inducing people to report work being done on
pre-release products and publishing the company’s trade secrets.
Gross, who formerly served the Electronic Frontier Foundation as counsel,
said he has asked for an extension, which Apple granted, but has yet
to hear back from lawyers about dropping the case entirely.
“I’ve told them, ‘just dismiss this; this is meritless and you’re going to
lose, and we’re going to file a motion that’s going to seek to dismiss the
entire lawsuit on First Amendment grounds,'” he said.
Apple officials have remained largely quiet about the lawsuit. While they
would not comment on any of the specifics, the company has released a
statement regarding the case:
“Apple has filed a civil complaint against the owner of ThinkSecret.com and
unnamed individuals who we believe stole Apple’s trade secrets. We believe
that ThinkSecret solicited information about unreleased Apple products from
these individuals who violated their confidentiality agreements with Apple
by providing details that were later posted on the internet. Apple’s DNA is
innovation, and the protection of our trade secrets is crucial to our
success.”
The lawsuit against Ciarelli, Gross said, wasn’t filed by Apple to find out
the sources of the leak — they could have just subpoenaed the information.
Rather, it was intended to intimidate bloggers, or “citizen journalists” as they sometimes
call themselves, from publishing confidential information.
“The Supreme Court has said, ‘I’m sorry, you can’t hold [journalists]
liable. They aren’t liable; you can go after the person who
stole it but you can’t go after the journalist.’ [It’s] the same thing here,” Gross said. “What did Nick do here to induce someone to do it? The only thing they
say that he did to induce them was, one, that he was going to publish the
information and, two, he promised some sources anonymity. That’s the basis of
journalism; that’s how it works.”
This lawsuit wouldn’t have been filed if the information was coming out of the
New York Times, Wall Street Journal or other major media outlet, Gross said.
In fact, he added, the journalist who published such a story in one of those
organizations would have been credited with good journalism, having good
sources and “getting the scoop,” a media term for beating other
publications to a story.
This is a contention Ciarelli has maintained from the start. Ciarelli, who
plans to continue studies at Harvard while under the specter of this
lawsuit, said he’s no different from any other news-gathering organization.
“I use the same, legal newsgathering techniques that any other reporter
uses,” he said. “Of course, large publications and major newspapers
frequently publish news scoops about Apple, but Apple has never sued any of
them, and is instead attempting to silence a small online publication …
our society doesn’t want journalists to censor themselves due to fear they
may be sued when they publish news of public interest.”
Media outlets also have the advantage of in-house general counsel; bloggers,
however, are another story. Many run their sites from their homes and maintain them
as a hobby, not a profession. Gross said Apple filed the lawsuit
because lawyers were guessing Ciarelli, an individual blogger, would
not be able to pony up court costs to defend himself against a large
company.
“They filed against ThinkSecret because they believed that they wouldn’t have
enough resources to fight this, and that they would cave and then that would
set an example to other journalists who are not with any major media
organization,” he said.
It’s a scenario that almost came to pass. When Ciarelli was still known
only by his nom de plume, Nick de Plume, it was money that was an initial
factor in Gross’ decision to take the case or not. He said he was at first
concerned about taking on the case pro bono because it was going to
be a potentially large, lengthy case against a well-funded software company,
but Ciarelli convinced him otherwise.
“He said to me that he was never going to reveal his sources but said, ‘I
don’t have enough money for a legal defense, so perhaps Apple would agree if
I shut down the site, to drop the lawsuit,'” Gross said. “I realized that
what was going to happen if no one stepped up to the plate was Apple was
going to win and their intimidation tactics would just force [other sites]
to shut down because of legal fees. That was really critical for our firm
deciding to take the case.”
Gross said numerous Supreme Court cases have upheld journalists who lawfully
obtain information and publish the findings in the public interest, even if
that information was originally stolen.
The most famous example of this comes from the Pentagon Papers, a top secret
report conducted by the Department of Defense in the mid- to
late-1960s that studied U.S. decision-making policies leading up to the
Vietnam War. A copy of the report was leaked to a New York Times reporter,
who proceeded to write a series of reports on the contents.
The Wall Street Journal also ran a series of articles on the report and both
were issued an injunction by the Department of Justice to prevent
further stories on the subject. Ultimately, the Supreme Court ruled in
favor of the two publications on June 30, 1971, by a 6-3 decision.
A former systems programmer for IBM , Gross has been active
in Internet law since the early 1990s. While at the EFF, he helped successfully defend an individual, charged with
wire fraud, who had e-mailed a magazine originally obtained by computer
hackers.
