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Ernest Miller Ernest Miller pursues research and writing on cyberlaw, intellectual property, and First Amendment issues. Mr. Miller attended the U.S. Naval Academy before attending Yale Law School, where he was president and co-founder of the Law and Technology Society, and founded the technology law and policy news site LawMeme. He is a fellow of the Information Society Project at Yale Law School. Ernest Miller's blog postings can also be found @
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March 08, 2005

Press Shield Laws Defend Democratic Culture in Trade Secret Cases

Posted by Ernest Miller

Yesterday, Prof. Susan Crawford wrote about the ongoing controversy over the subpoenas Apple issued to various online publications and whether or not these publications would be covered by California's press shield law (Apple and Bloggers). I agree with Crawford that there is no principled distinction between "bloggers" and "journalists" (a position I've held for quite some time). However, I must respectfully disagree with her second point that we really shouldn't care about those who publish trade secrets:

But as long as we're being principled, breaches of trade secret confidentiality are not the stuff of democratic transparency. It's important to protect sources who are leaking government information -- that's democracy at work. It's not as important to protect sources who are allegedly breaking promises to keep information confidential.

In my view, the reporter's shield (like anti-SLAPP motions in California) should be reserved for information/sources that actually have something to do with the democratic process. Let's allow judges to carry out this weighing of the importance of the reporter's privilege. An absolute rule ("never force reporters to divulge sources") will weaken that privilege when we need it the most -- when reporters are reporting on government corruption.

Although Crawford does point out a danger, that the privilege would be weakened by extending it to non-corruption cases, I think there is a greater danger in not holding to a broad definition of the purpose of the First Amendment.

Crawford's distinction between information that is important to the democratic process and information that is not reminds me too much of the Meiklejohnian or republican conception of First Amendment jurisprudence. Meiklejohn emphasized that the purpose of the First Amendment was to protect the democratic process and, thus, political speech and high culture were to receive more First Amendment protection than non-political speech and low culture. I disagree with this view of the First Amendment and adhere more towards Jack Balkin's view that the purpose of the First Amendment is to protect a democratic culture, which incorporates a wider view of what is protected, such as popular culture and non-political speech.

From this view, I believe that publishing information about trade secrets can be very important to defending democratic culture. Imagine someone who publishes information about DRM, for example. The connection is very clear there. But even in the current Apple case the issue is very clear. Apple has a tremendous impact on our common culture; commenting upon and participating in the construction of that culture is an important democratic value. Perhaps we should reconsider our trade secret laws.

Comments (2) + TrackBacks (0) | Category: Freedom of Expression


COMMENTS

1. Y. Subramanian on March 17, 2005 01:11 PM writes...

Companies that have "tremendous impact on our common culture" shouldn't be allowed to keep trade secrets. And they shouldn't be allowed to find out who steals such secrets in the name of "defending democratic culture". Yeah, right.

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2. Ernest Miller on March 18, 2005 04:05 PM writes...

Subramanian,

Uh, no. You are mischaracterizing what I've said. As far as I'm concerned, trade secrets are essentially a contractual right between a company and its employees and contractors. There are many things a company can and should do in order to protect trade secrets. If the secret is so darn important, then it is worth protecting. For example, the lawsuit notes that several of the lines in the published article came directly from a companies' confidential power point. Well, perhaps the company should have made several different power points with slightly different wording and kept track of who was exposed ... that would reduce the number of possible culprits to a much smaller number. Further investigation into their own employees including lie detector tests and searching employee data files, etc., could also be used.

Companies ought to be more careful with their trade secrets in the first place.

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