Salocin

Apple and the courts

So Apple is going to court to try to find out which of it's employees has broken their contract, gone against non-disclosure agreements, and shared private information on forthcoming projects with the press. If I were Apple, I also would be fairly pissed that someone who is supposed to be on my side is getting his/her kicks out of breaking trust with the company. They've gone about it in a way that has the EFF, and privacy/rights activitists up in arms.

As you may have guessed, I'm not totally averse to Apple's point of view here. Some jackass is getting brownie points (perhaps even getting paid) for breaking a contract with the company. Maybe they're doing it because it makes them feel special, maybe they're doing it because they think 'the public has a right to know', perhaps it's because they're disgruntled, who knows.

Implicit in any employment contract is a duty of loyalty to the firm, and that that contract is being broken (not to mention the explicit non-disclaimer that's in every tech contract out there). In the UK at least, no industrial tribunal would stand in the way of a company firing an employee for this sort of behaviour, it is a clear breach of contract and worthy of being thrown out on your ear with no severance pay and less sympathy.

The problem is - how do you find out who they are? Since the only people who know are the press, and they're arguing that they're protected from any subpoenas by the laws protecting journalists, does this mean that the employee in question can get away with this? Does it mean that, despite evidence of a breach of contract, and knowing perfectly well where the information lies, Apple is simply going to have to suck it up? Does it mean that this sort of behaviour is to be condoned?

That's ridiculous.

While I have every respect for whistleblowers and their right to be protected because of their situation, this is not whistleblowing - it's the sharing of secret information that has been entrusted to that individual, and it's not far different from using secret information about a new product launch and trading on the market to benefit from the rise in company share price. Someone's sharing the information, they're getting something out of it - perhaps money, perhaps just a feeling of power, it doesn't matter - there has to come a point where the law says to journalists, "no - this information was obtained because someone did something that is essentially against the law, there is an injured party as a consequence, and there must be redress". Otherwise you open the floodgates, and some disgruntled employee in every company with a legitimate secret will be selling it to the first journalist who'll take it. I don't want to live in that world.

Given the scrutiny and standards that companies are now required to operate under, I don't believe it's too much to ask for journalists to consider the circumstances under which they receive information, and to be asked to make judgements about whether the law has been broken - if you're getting information from an insider and you're publishing it, you should know better, and to hide behind laws that are supposed to protect whistleblowing, standing up to your government and fighting the good fight is cowardly, and a misuse of the safeguards you operate under.

If this is indeed a "right" under the laws that protect the freedom of the press, then those rights have been too broadly defined, and they are being abused. There is no justification for damaging the economic potential of a new product through what amounts to journalistic industrial espionage. The control over the release of such information resides with the company in question, and to remove that control from them through illegitimate means, if justified by the laws as they stand, requires that those laws be amended, because clearly we cannot rely on those subject to the laws to act with restraint or moderation.