March 19, 2005 | By Donna Wentworth

Why Apple Should Stop Threatening Journalists

The San Jose Mercury News gets it:

Consider the following scenario. A drug company's research determines that one of its drugs already on the market is dangerous. The company decides the research results are proprietary trade secrets and bottles them up.

It's clear that the public would be served by a conscientious insider leaking the research data to the media.

But after a ruling that could limit the public's access to vital information, insiders may now be reluctant to leak that kind of information. That's because Santa Clara County Superior Court Judge James Kleinberg said a reporter's promise of confidentiality may not be worth anything when the leak involves trade secrets.

You might also want to consider the automobile manufacturer that wants to keep secret the fact that its airbags malfunction in such a way as to threaten young children strapped in car seats. Or the e-voting machine vendor seeking to silence rumblings about the security of its machines, potentially leaving your vote vulnerable to hackers. (Sound familiar?)

This is a core function of journalist's shield laws that protect the confidentiality of sources. These laws allow the whistle-blower to blow the whistle. They protect us from companies that might otherwise harm us.

You might argue that no one's life is at stake in Apple v. Does and that stripping these journalists of their ability to keep their sources private is therefore a small matter. But Judge Kleinberg's ruling [PDF] is broad-brush. If it is allowed to stand, it can and will be used liberally by deep-pocketed companies to keep business journalists of all stripes from reporting on whatever they decide to call a "trade secret."

The Mercury News editorial concludes with the following warning:

What's more, Kleinberg seems to indicate that he's in a position to decide what is newsworthy. Saying that "an interested public is not the same as the public interest,'' he suggests that information about upcoming Apple products is little more than gossip.

That's a dangerous precedent. Would a leak last month about Hewlett-Packard's imminent firing of Carly Fiorina be news or mere gossip? Could a wide swath of information about private businesses become off-limits to reporters?

Let's hope the answer doesn't have to be "yes."


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