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The First Amendment doesn't apply here. The First Amendment Right to Free Speech only applies to the Federal Government, whereby it cannot restrict free speech.

by micks56 17y ago

The First Amendment doesn't apply here. The First Amendment Right to Free Speech only applies to the Federal Government, whereby it cannot restrict free speech. It applies to the states through the 14th Amendment due process clause. Publishing these materials are not protected in any way by the First Amendment.

rjurney 17y ago
And yet - it is important that they be published. This is newsworthy. Every paper in America would have printed this, if their audience would find it relevant. Does nobody care about journalism anymore? A free and independent press is vital to a functioning democracy. Techcrunch showed enormous restraint in their publishing of this data. They acted properly. All the outrage is misplaced. Be outraged at the cracker or disgruntled employee that stole the documents, assuming that is what happened. There are no trade secrets here, there are strategy secrets. I am shocked that such a smart group of people fail to understand the basic underpinnings of our society: http://en.wikipedia.org/wiki/New_York_Times_Co._v._United_States http://en.wikipedia.org/wiki/New_York_Times_Co._v._United_St...
- micks56 17y ago
  Your definition of trade secrets is different than most court's definition. The definition used by most jurisdictions is: 1. Not generally known or ascertainable by legal methods (TechCrunch violated the Computer Fraud and Abuse Act to get the info.) 2. Must provide competitive value (Strategy plans provide competitive value) 3. Must be subject to reasonable efforts to maintain secrecy (the password, while weak, probably does constitute a reasonable effort) edit: I see that you edited your post to include the New York Times case. The facts of that case are different than the one with TechCrunch. In NYT, the Federal Government tried to abridge the freedom of press. That triggered the 1st Amendment protections. Here, with TechCrunch, neither the Federal Government or any State Government are trying to prevent TC from printing the information. Therefore, the 1st Amendment does not apply.
  - rjurney 17y ago
    You seem to have zero respect for the press. By your standard, Tobacco cancer data should never have been leaked and printed.
    - micks56 17y ago
      1. I have tremendous respect for the press and the work they do. I am separating personal values from what the law is. But I do believe that this is a case where the law and ethics are on the same side. 2. This isn't my standard. It is the standard that courts across the country use. The majority of states (including California) adopted a less stringent version call the Uniform Trade Secrets Act. Only 4 states, including my Massachusetts, whose version you see above, haven't adopted the act and instead employee their own versions. 3. Tobacco cancer data might be distinguished. First, it is a stretch to find that it has competitive value. Therefore it would not be classified under trade secret. Second, it probably isn't even covered under copyright because facts are not copyrightable, no matter how much effort was undertook to find them. But I don't really know the facts of the leaked cancer data. I would have to read them in order to determine whether it was legal for it to be leaked to the press.
      - rjurney 17y ago
        http://en.wikipedia.org/wiki/New_York_Times_Co._v._United_States http://en.wikipedia.org/wiki/New_York_Times_Co._v._United_St... If the President of the United States can't block secrets from being published... you think Twitter can? I would submit your knowledge of the practices of Journalism and the law in this area are lacking. Publishing secrets is the business of newspapers. It happens every day. Its their job. I am very surprised that so many people here fail to understand this. Just because you like Twitter does not mean its not appropriate to publish their extremely newsworthy secrets.
        micks56 17y ago
        Yes, because that is exactly how the 1st Amendment works. In NYT, the Federal Government tried to abridge the freedom of press. That triggered the 1st Amendment protections. Here, with TechCrunch, neither the Federal Government or any State Government are trying to prevent TC from printing the information. Therefore, the 1st Amendment does not apply. I admit that I have zero knowledge of journalism practices. But my legal knowledge is much greater; I am just over one semester away from graduating from law school. I am neutral on Twitter. They are a company that I neither like nor dislike and I do not use their product.
cma 17y ago
If Twitter's trade secrets are enforced, it will either be via A: Federal or B: State law. If free speech gets abridged as a side effect of enforcing trade secrets, then the legality of that aspect/interpretation of trade secrets laws is a constitutional question. You may be thinking of something like contract law, where someone can enter in to e.g. a non-disclosure agreement, and federal or state governments can enforce it. Such enforcement has been ruled legal, since the party to the contract had to voluntarily agree in exchange for something. Barring Twitter's EULA, Tech Crunch isn't a party to any contract with Twitter.
- micks56 17y ago
  It is not a Constitutional question, and I am not thinking of something in contract law. To be a First Amendment issue, there MUST be involvement by the Federal Government, or a State Government (via the 14th Amendment), or by a State Actor (a person or entity that appears to be the State Government). "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." There is nothing in there that says companies (ex. TechCrunch) have a right to print whatever they want, whether by free speech or by free press. It only says the government cannot pass a law that prevents the printing of free speech.
  - cma 17y ago
    >There is nothing in there that says companies (ex. TechCrunch) have a right to print whatever they want, whether by free speech or by free press. Right, there are narrow restrictions for e.g. libel. In that example those restrictions apply to congress's ability to regulate libel, and it has been in the past been a constitutional question. How would you hypothesize that Twitter could go after TechCrunch without invoking a law at either the federal or state level?
    - micks56 17y ago
      Think of free speech as a noun. Perhaps it should be written as free-speech. What this means is that 1st Amendment protections don't apply to all forms of speech, only free-speech. Examples of things that are not considered free-speech are trade secrets, hate speech, and libelous/slanderous speech. Congress and the States can regulate and pass statutes on those as they wish. They are not afforded Constitutional protection. The 1st Amendment doesn't grant me the right to write what I want on this forum, even if it would fit in the free-speech classification. Paul Graham can take down whatever he wants, whenever he wants. If Paul Graham became governor of California, he couldn't pass a statute that banned talking about Twitter and TC in online forums. That would run afoul of the 1st Amendment. I am not sure that I understand your question on how Twitter could go after TC. How would anyone go after another entity without Federal or State law? I doubt there is a local ordinance about this wherever those two companies are located, and I doubt International Law would apply. If Twitter wanted some sort of non-legal recourse, they could 1) talk it out with TC, 2) reach an out of court settlement, or 3) start the first SMS-organized boycott of a web site.

by micks56 17y ago

rjurney 17y ago

And yet - it is important that they be published. This is newsworthy. Every paper in America would have printed this, if their audience would find it relevant. Does nobody care about journalism anymore? A free and independent press is vital to a functioning democracy. Techcrunch showed enormous restraint in their publishing of this data. They acted properly. All the outrage is misplaced. Be outraged at the cracker or disgruntled employee that stole the documents, assuming that is what happened. There are no trade secrets here, there are strategy secrets. I am shocked that such a smart group of people fail to understand the basic underpinnings of our society: http://en.wikipedia.org/wiki/New_York_Times_Co._v._United_States http://en.wikipedia.org/wiki/New_York_Times_Co._v._United_St...

micks56 17y ago
Your definition of trade secrets is different than most court's definition. The definition used by most jurisdictions is: 1. Not generally known or ascertainable by legal methods (TechCrunch violated the Computer Fraud and Abuse Act to get the info.) 2. Must provide competitive value (Strategy plans provide competitive value) 3. Must be subject to reasonable efforts to maintain secrecy (the password, while weak, probably does constitute a reasonable effort) edit: I see that you edited your post to include the New York Times case. The facts of that case are different than the one with TechCrunch. In NYT, the Federal Government tried to abridge the freedom of press. That triggered the 1st Amendment protections. Here, with TechCrunch, neither the Federal Government or any State Government are trying to prevent TC from printing the information. Therefore, the 1st Amendment does not apply.
- rjurney 17y ago
  You seem to have zero respect for the press. By your standard, Tobacco cancer data should never have been leaked and printed.
  - micks56 17y ago
    1. I have tremendous respect for the press and the work they do. I am separating personal values from what the law is. But I do believe that this is a case where the law and ethics are on the same side. 2. This isn't my standard. It is the standard that courts across the country use. The majority of states (including California) adopted a less stringent version call the Uniform Trade Secrets Act. Only 4 states, including my Massachusetts, whose version you see above, haven't adopted the act and instead employee their own versions. 3. Tobacco cancer data might be distinguished. First, it is a stretch to find that it has competitive value. Therefore it would not be classified under trade secret. Second, it probably isn't even covered under copyright because facts are not copyrightable, no matter how much effort was undertook to find them. But I don't really know the facts of the leaked cancer data. I would have to read them in order to determine whether it was legal for it to be leaked to the press.
    - rjurney 17y ago
      http://en.wikipedia.org/wiki/New_York_Times_Co._v._United_States http://en.wikipedia.org/wiki/New_York_Times_Co._v._United_St... If the President of the United States can't block secrets from being published... you think Twitter can? I would submit your knowledge of the practices of Journalism and the law in this area are lacking. Publishing secrets is the business of newspapers. It happens every day. Its their job. I am very surprised that so many people here fail to understand this. Just because you like Twitter does not mean its not appropriate to publish their extremely newsworthy secrets.
      - micks56 17y ago
        Yes, because that is exactly how the 1st Amendment works. In NYT, the Federal Government tried to abridge the freedom of press. That triggered the 1st Amendment protections. Here, with TechCrunch, neither the Federal Government or any State Government are trying to prevent TC from printing the information. Therefore, the 1st Amendment does not apply. I admit that I have zero knowledge of journalism practices. But my legal knowledge is much greater; I am just over one semester away from graduating from law school. I am neutral on Twitter. They are a company that I neither like nor dislike and I do not use their product.

cma 17y ago

If Twitter's trade secrets are enforced, it will either be via A: Federal or B: State law. If free speech gets abridged as a side effect of enforcing trade secrets, then the legality of that aspect/interpretation of trade secrets laws is a constitutional question. You may be thinking of something like contract law, where someone can enter in to e.g. a non-disclosure agreement, and federal or state governments can enforce it. Such enforcement has been ruled legal, since the party to the contract had to voluntarily agree in exchange for something. Barring Twitter's EULA, Tech Crunch isn't a party to any contract with Twitter.

micks56 17y ago
It is not a Constitutional question, and I am not thinking of something in contract law. To be a First Amendment issue, there MUST be involvement by the Federal Government, or a State Government (via the 14th Amendment), or by a State Actor (a person or entity that appears to be the State Government). "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances." There is nothing in there that says companies (ex. TechCrunch) have a right to print whatever they want, whether by free speech or by free press. It only says the government cannot pass a law that prevents the printing of free speech.
- cma 17y ago
  >There is nothing in there that says companies (ex. TechCrunch) have a right to print whatever they want, whether by free speech or by free press. Right, there are narrow restrictions for e.g. libel. In that example those restrictions apply to congress's ability to regulate libel, and it has been in the past been a constitutional question. How would you hypothesize that Twitter could go after TechCrunch without invoking a law at either the federal or state level?
  - micks56 17y ago
    Think of free speech as a noun. Perhaps it should be written as free-speech. What this means is that 1st Amendment protections don't apply to all forms of speech, only free-speech. Examples of things that are not considered free-speech are trade secrets, hate speech, and libelous/slanderous speech. Congress and the States can regulate and pass statutes on those as they wish. They are not afforded Constitutional protection. The 1st Amendment doesn't grant me the right to write what I want on this forum, even if it would fit in the free-speech classification. Paul Graham can take down whatever he wants, whenever he wants. If Paul Graham became governor of California, he couldn't pass a statute that banned talking about Twitter and TC in online forums. That would run afoul of the 1st Amendment. I am not sure that I understand your question on how Twitter could go after TC. How would anyone go after another entity without Federal or State law? I doubt there is a local ordinance about this wherever those two companies are located, and I doubt International Law would apply. If Twitter wanted some sort of non-legal recourse, they could 1) talk it out with TC, 2) reach an out of court settlement, or 3) start the first SMS-organized boycott of a web site.