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You're putting a couple carts before your horse there. First, you presume there's a trade secret. There's no indication that is correct; all I see is a new soo

You're putting a couple carts before your horse there. First, you presume there's a trade secret. There's no indication that is correct; all I see is a new soon-to-be-sold product that Apple intentionally let off of its campus and into the wild. Second, you presume Gawker criminally misappropriated or otherwise misused the trade secret. Gawker bought a lost phone. Did they have a duty under California law to seek out its owner? Possibly -- but that's an entirely different question from if they criminally violated trade secrets laws. There's no indication that Gawker had any duty at all to protect Apple's secrets; it's not like Gawker is an employee at Apple. You can't just say that, because a person committed a lesser crime, they necessarily committed all greater conceivable crimes. Same goes for the person who found and sold the phone. Third, you presume the government had probable cause to believe that each of the items seized from Chen had information relating to a crime. Two problems with that: (a) as noted above, it's unclear a crime even was committed and (b) the warrant was patently overbroad, and its doubtful the government had more in mind than a fishing expedition. That's a plain violation of the Fourth Amendment. Fourth, where's the fire? There's no on-going crime here. There's no criminal enterprise. There's an isolated, public incident. So why the high priority? Why the extremely aggressive measures of seizing all of a journalists' computers? Compare and contrast that situation to one of the cases listed on the DOJ website you linked to: "In support of his plea, Mitchell acknowledged that on September 5, 2007, he emailed much of the contents of a DuPont proprietary spreadsheet document entitled “Denier Economics” to an official with Kolon. “Denier” is a term used to describe the weight per unit length (linear density) of a continuous filament or yarn. The Denier Economics spreadsheet contained highly sensitive business trade secret information related to DuPont’s production capacity for Kevlar® yarn in a variety of denier types. Included in the information for each denier type were specific figures relating to annual production, unit capacity, spin speeds, and several factors relating to line efficiency (such as percentage yield and percentage up time). The Denier Economics spreadsheet was closely held and distributed to a small number of DuPont personnel on a need-to-know basis only." Now that's a trade secret, and it's a clear misappropriation of it by someone with a duty to keep it secret. And what did the DOJ do there? Did they start seizing the property of third parties covered by shield laws? No. They slowly started building a case. The exact opposite of what REACT did here. Shoot first, ask later, for high profile crimes is not just the wrong approach, it's unconstitutional and inappropriate. And it demands an explanation.

anigbrowl 16y ago
I'll try and keep this short, so we don't waste time in a dead thread (but you're welcome to email if you like). 1. I agree the trade secret is questionable. But an employee having it off-campus isn't a release into the wild. Gizmodo even wrote an article about how well it was disguised, calling it '[a] very ingenious solution to protect future designs from lookeyloos'. It's hard to argue Apple intentionally abandoned their IP; and although the exterior shell was removable, the finder did not disassemble the device within. So when Gizmodo got it, the only information 'in the wild' - which was published by Engadget, who were also offered the device - was its external appearance. 2. Gawker paid $5000, by their own admission. Clearly they considered the likely provenance of the phone to have commercial value, and I think that part is legitimate - the loss of a prototype by a famously secretive firm is newsworthy for both consumers and stockholders, who have an interest in the integrity of the firm's IP. Gawker certainly has no obligation to help Apple keep their reputation for security intact. Arguably it was stolen under CA law, arguably that put Gawker in a position of receiving, knowing that it could not be legally saleable under the circumstances. And arguably they took the phone with the intent of returning it to Apple, and what they paid for was the story of how it was lost and found, making it newsworthy as above. Where I part ways with Gawker is in what occurred next. Believing it was likely a prototype they could easily infer that it belonged to Apple; and being experienced tech journalists, they certainly knew how to get of hold of someone senior there, describe the device and its attached ID labels, and confirm its authenticity. A quick look at California's Uniform Trade Secrets Act would have apprised them that a prototype device is itself a trade secret, and that they did have a duty of care, under subparagraph (b)(2)(C) of the UTSA: ['Misappropriation' means .. disclosure or use .. by someone who] Before a material change of his or her position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake. So - loss of protoype phone, not a secret. External appearance of same - also not a secret, Engadget has republished the finder's own photos. Acquisition of device - defensible, even with money involved. So far, so good. Take all the pictures you want, call Apple, confirm and return, publish and be damned. Prior restraint is a barrier to any injunctions from Apple, as shown by Ford Motor Co. v Lane. But this is not what happened. Instead, Gawker, acting as Chen's employers, 'dissected' (their word) the device, up to the point of Chen losing confidence in his ability to reassemble it, and published the results. Now this seems to me like a clear violation of not only the UTSA (creating civil liability) but the Economic Espionage Act of 1996, specifically title 18, § 1832. I suggest that Gawker converted possession of a prototype device, destined for an existing global market, into advertising revenue based on readership, knowing that publication of the device's internal construction would injure Apple by benefiting competitors and counterfeiters. I think they have violated this law in multiple ways, and possibly violated laws against receiving and fraud (for misrepresentation of fact to the finder/seller and employees about their liability under civil and criminal law). 3. Yes, I think Gawker's published version of events is prima facie evidence of a crime and that the federal statute cited provides for a very broad search. To my mind the only question is how far up Gawker's chain of command the responsibility goes. 4. How do we know? Gawker parlays its audience into sometimes exclusive access to products, services and information in the various industries it covers. They have actively solicited confidential commercial information for cash, relying on their journalistic privilege to protect them. Is it not possible that they, or one of their staff, would share a trade secret for some quid pro quo, given their professed lack of ethical inhibitions? Yes, it is indeed an aggressive approach by the police. But skilled technologists have been known to destroy digital evidence, and Gawker blogs have published a articles on topics like concealment or permanent deletion of digital information...as recently as last month. And no, I'm not sure I would trust a promise to voluntarily abstain from doing so.

anigbrowl 16y ago

I'll try and keep this short, so we don't waste time in a dead thread (but you're welcome to email if you like). 1. I agree the trade secret is questionable. But an employee having it off-campus isn't a release into the wild. Gizmodo even wrote an article about how well it was disguised, calling it '[a] very ingenious solution to protect future designs from lookeyloos'. It's hard to argue Apple intentionally abandoned their IP; and although the exterior shell was removable, the finder did not disassemble the device within. So when Gizmodo got it, the only information 'in the wild' - which was published by Engadget, who were also offered the device - was its external appearance. 2. Gawker paid $5000, by their own admission. Clearly they considered the likely provenance of the phone to have commercial value, and I think that part is legitimate - the loss of a prototype by a famously secretive firm is newsworthy for both consumers and stockholders, who have an interest in the integrity of the firm's IP. Gawker certainly has no obligation to help Apple keep their reputation for security intact. Arguably it was stolen under CA law, arguably that put Gawker in a position of receiving, knowing that it could not be legally saleable under the circumstances. And arguably they took the phone with the intent of returning it to Apple, and what they paid for was the story of how it was lost and found, making it newsworthy as above. Where I part ways with Gawker is in what occurred next. Believing it was likely a prototype they could easily infer that it belonged to Apple; and being experienced tech journalists, they certainly knew how to get of hold of someone senior there, describe the device and its attached ID labels, and confirm its authenticity. A quick look at California's Uniform Trade Secrets Act would have apprised them that a prototype device is itself a trade secret, and that they did have a duty of care, under subparagraph (b)(2)(C) of the UTSA: ['Misappropriation' means .. disclosure or use .. by someone who] Before a material change of his or her position, knew or had reason to know that it was a trade secret and that knowledge of it had been acquired by accident or mistake. So - loss of protoype phone, not a secret. External appearance of same - also not a secret, Engadget has republished the finder's own photos. Acquisition of device - defensible, even with money involved. So far, so good. Take all the pictures you want, call Apple, confirm and return, publish and be damned. Prior restraint is a barrier to any injunctions from Apple, as shown by Ford Motor Co. v Lane. But this is not what happened. Instead, Gawker, acting as Chen's employers, 'dissected' (their word) the device, up to the point of Chen losing confidence in his ability to reassemble it, and published the results. Now this seems to me like a clear violation of not only the UTSA (creating civil liability) but the Economic Espionage Act of 1996, specifically title 18, § 1832. I suggest that Gawker converted possession of a prototype device, destined for an existing global market, into advertising revenue based on readership, knowing that publication of the device's internal construction would injure Apple by benefiting competitors and counterfeiters. I think they have violated this law in multiple ways, and possibly violated laws against receiving and fraud (for misrepresentation of fact to the finder/seller and employees about their liability under civil and criminal law). 3. Yes, I think Gawker's published version of events is prima facie evidence of a crime and that the federal statute cited provides for a very broad search. To my mind the only question is how far up Gawker's chain of command the responsibility goes. 4. How do we know? Gawker parlays its audience into sometimes exclusive access to products, services and information in the various industries it covers. They have actively solicited confidential commercial information for cash, relying on their journalistic privilege to protect them. Is it not possible that they, or one of their staff, would share a trade secret for some quid pro quo, given their professed lack of ethical inhibitions? Yes, it is indeed an aggressive approach by the police. But skilled technologists have been known to destroy digital evidence, and Gawker blogs have published a articles on topics like concealment or permanent deletion of digital information...as recently as last month. And no, I'm not sure I would trust a promise to voluntarily abstain from doing so.