Monday, March 14, 2005

Owens says let business be business

Howard Owens, whose day job is innovations chief (my shorthand because I like the title) at California's Ventura County Star, writes on his site that Apple should have the ability to find out who is leaking its secret information to the bloggers who are posting it. Nondisclosure agreements are contracts that should be enforced, he says.

There is a certain journalistic hubris that equates the need for open government with full disclosure by private enterprise. The two do not equate. We are the government, and the people have a right to know everything about its government. Businesses are sovereign, even publicly traded companies. They have a right to keep secrets, just as any private individual has a right to keep secrets.

This is where Owens and I part. We wouldn't if, indeed, business were truly sovereign in this county. Oh, for such a refreshing development! The problem is that business and government are inextricably intertwined in America -- and that's even before the move toward privatization afoot across the land. The more business gets into government's pocket and vice versa, the less this argument holds. Now, in Apple's specific case, the intertwining may well be minimal. But the problem is that the judicial system, once a precedent is set, tends to give stare decisis more weight than looking at each case individually. And that is why this concerns me -- the precedent that can be set here could have wide-ranging effects.

(And just a thought: What if that prison medical company that was trying to cover up deaths had a nondisclosure agreement? Would we logically argue the same thing? After all, it's a "sovereign" business.)


At 3/17/05, 4:15 PM, Anonymous Anonymous said...

Thanks for the link ... but maybe I should have been clearer -- I'm not advocating that NDAs be used to cover up criminal activity. Very simply, businesses who chose to keep trade secrets should be allowed to keep trade secrets. Once a business, however, enters into a contract with the government, then anything in the government files becomes public record.

At 3/17/05, 5:04 PM, Blogger Doug Fisher said...

Here's my problem with the position you take, which from the perspective of business and innovation is reasonable. The courts tend not to distinguish very well -- I know because I've covered such cases. Once a court rules for trade secrets, then a business can put a lot of things under that rubric, govenrment contract or not (in fact, several government policies under the current administration have encouraged it as a way to get around the FIOA). We're not necessarily talking corruption or criminal activity (that example I use, of the prison health, would not necessarily be either). Several governmental entities, for instance, have entered into private contracts and shipped their data off and then claimed it was all "private" -- and the results have been uneven at best, with some successful in keeping the material under wraps (but even more, why should we have to spend thousands of dollars to fight it?). Bottom line: "Trade secrets" has a great potential for abuse, especially in cases of malfeasance. And while the Apple case might not directly affect the way we are governed or the water we drink or the air we breathe, the potential precedent is troubling for its possible ramifications in just those cases.

At 3/19/05, 4:50 PM, Anonymous Anonymous said...

I'd feel a lot more comfortable about the positions of the press on this issue if they weren't themselves so often prone to keep information out of the public eye.

Bryan Murley


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