Why Steve Jobs loves the proposed federal “shield”

We haven’t heard much of late about the so-called federal shield law. Maybe that’s because reporters have finally read the bill and realized that its main beneficiary would be Steve Jobs of Apple.

In December 2004, Apple sued two web sites that had published details of some hush-hush Apple products. The information was a trade secret, like the formula for Coke, said Apple, which also wanted to know who had leaked the info. But state courts said no because California had a shield law that protected the web sites from divulging their sources. (See case summary in Wikipedia.)

But had the proposed federal shield law been on the books, the outcome would have been different. This proposal, called — The Free Flow of Information Act of 2007, authorizes the jailing of any reporter who refuses to say who disclosed a trade secret. In fact, the law never uses the word “shield.” Instead it details the various circumstances under which reporters can be jailed. Congress has a truth in labeling requirement for legislation. The first sentence of every bill explain its intent. The first line from the HR 2102, which passed the House by a 398-21 margin last October, say the act is designed:

“To maintain the free flow of information to the public by providing conditions for the federally compelled disclosure of information by certain persons connected with the news media.”

So the bill’s stated purpose is to keep information flowing freely by insuring that reporters can be deprived of their freedom if they don’t reveal their sources in cases involving national security or terrorist attacks. The trade secrets provision in the House bill says once the party with the secret (i.e. Steve Jobs) “has exhausted all reasonable alternative sources” ( pretty please with a cherry on top failed) a federal judge can send editors to jail unless they “identify a person who has disclosed a trade secret.”

The trade secret provision will cripple investigations of corporate activity. For instance, consider what happened in 2006 when the Electronic Frontier Foundation filed a federal lawsuit charging that “AT&T Corp. has opened its key telecommunications facilities and databases to direct access by the NSA and/or other governmental agencies, intercepting telephone service since at least June 2004.”

As part of its reponse AT&T wrote EFF a letter asking about its posession of documents that “relate to the technical structure of AT&T telephone networks and are extremely sensitive in nature . . . Were they or any one of them to fall into the wrong hands they could be used to ‘hack’ into the AT&T network.”

Had the Free Flow law been on the books, would there have been a story about illegal surveillance? Only AT&T knows how its network runs. Reporters would have to use AT&T “technical” documents or persuade AT&T officials to leak “extremely sensitive” information. Would reporters peeking into AT&T’s network find themselves telling a federal judge where they got secret information of such sensitivity?

In 1977 Mark Dowie published Pinto Madness in Mother Jones Magazine. The article said Ford Motor Company had known that the design of the gas tank on its Pinto made the car susceptible to explosion in rear end collisions, that the company had a safer design and yet it sold the car anyway because of competitive pressures. At one point Dowie wrote:

“Internal company documents in our possession show that Ford has crash-tested the Pinto at a top-secret site more than 40 times and that every test made at over 25 mph without special structural alteration of the car has resulted in a ruptured fuel tank. Despite this, Ford officials denied under oath having crash-tested the Pinto.”

The Free Flow of Information Act will not shield reporters. It will stab them in the backs.