The question of legal representation was an acute one for dePlume Organization LLC, the owner of the site, and the organizations founder, Nick dePlume—dePlume is the screen name of Nick Ciarelli, a 19-year-old freshman at Harvard University in Cambridge, Mass.
Terry Gross, a partner at the San Francisco-based law firm of Gross & Belsky LLP, will represent Think Secret on a pro bono basis. Gross, formerly counsel to the Electronic Frontier Foundation, has specialized in issues of defamation and privacy, especially around Internet law.
Gross said he had been contacted by the EFF, which asked him if he could take the case. He added that while working with the EFF, he had addressed related issues dating back to 1991. "Ive worked on very similar issues in a number of cases," Gross said.
"The EFF works with a wide variety of lawyers who do pro bono work and are interested in privacy issues," said Kurt Opsahl, a staff attorney for the EFF. "Terry is an excellent attorney weve worked with in the past, and Im glad that it worked out."
Gross said his defense will be based on the First Amendment and freedom of the press. "With any statute," he said, "when the First Amendment is involved, there has to be a balancing of interests." He compared trade secrets versus free speech to the issue of copyrights versus parody.
"Theres a long line of First Amendment cases involving the publication of secrets," Gross said. "The publisher cannot be held liable for publishing information that he lawfully obtains."
Gross noted the precedent of cases involving the publication of leaked grand jury testimony and judicial review boards. "The person who stole this confidential information is liable, but the publisher cant be," he said.
Gross said he has spoken with lawyers representing Apple, adding that the defenses answers to the complaint are due Feb. 2. "This takes a lot of resources," Gross said. "Apple has a lot of money."
In his response, Gross said he would bring an anti-SLAPP (strategic lawsuit against public participation) motion to have the complaint dismissed on First Amendment grounds, and that he will be requesting that Apple pay for the defenses lawyer fees. "The law provides punishment for companies that file frivolous lawsuits," he said.
In contrast, Gross said he was not as critical of Apples previous suits seeking subpoenas from similar sites in pursuit of the true identities of anonymous posters who seemed to have access to confidential information. The EFF is representing some of the defendants in this complaint.
"This was the appropriate way to go," he said. But he would not comment on individual cases, saying there could be reporter shield issues preventing the disclosure of these identities. The EFFs Opsahl confirmed that they would be resisting the subpoenas, claiming the right of a reporter shield.
The suit, filed Jan. 4 in the Superior Court of Santa Clara County, alleged that Think Secret engaged in misappropriation of trade secrets, as defined by the California UTSA (Uniform Trade Secrets Act).
The UTSA prohibits anyone from misappropriating trade secrets, which are defined as "information, including a formula, pattern, compilation, program, device, method, technique or process." However, court rulings have said that other items can be termed trade secrets, such as customer lists, contact information, business plans and research.
For something to be classified under the UTSA as a trade secret, it must meet two criteria. The first is that the information must derive some real or possible economic value from not being available to the public or to "persons who can obtain economic value from its disclosure or use." The second is that the owner of the information must be able to show that it has made reasonable efforts to keep it secret.
Misappropriation is distinct from violation of an NDA (non-disclosure agreement). The latter is a contract signed between two parties in order to keep an item secret. The latter can involve wrongfully acquiring a trade secret or, even if it were acquired legitimately, wrongfully using or disclosing the trade secret.
In addition, the UTSA says misappropriation also applies to those who "knew or had reason to know that his or her knowledge of the trade secret was: (i) derived from or through a person who had utilized improper means to acquire it; (ii) acquired under circumstances giving rise to a duty to maintain its secrecy or limit its use; or (iii) derived from or through a person who owed a duty to the person seeking relief to maintain its secrecy or limit its use."
As a result, not only are those who break an NDA potentially liable, but so are those who receive trade secrets from such a source.