Ill. judge holds his nose, makes right call in leak case

Monday, August 27, 2012

A good judge understands the law, applies it even when the result is undesirable and changes his mind when presented with new information.

If his opinion in Johns-Byrnes Co. v. TechnoBuffalo LLC is any indication, Michael Panter is a pretty good judge.

Panter, an associate circuit court judge in Cook County, Ill., recently denied Johns-Byrnes’ request that he compel TechnoBuffalo to identify the person who leaked trade secrets about one of Johns-Byrnes’ customers. In doing so, Panter relied on both the Illinois reporter’s privilege and his ability to disregard TechnoBuffalo’s “odious” behavior.

In 2011, Johns-Byrnes was printing a user manual for Motorola’s Droid Bionic smartphone. Details about the phone had not been released and were the subject of significant speculation in the technology industry. While Johns-Byrnes was working on the manual, someone provided information about the manual and pictures of the phone to TechnoBuffalo.

TechnoBuffalo, which posts news and other information about technology on its website, says that part of its mission is to disseminate other companies’ trade secrets. To fulfill that mission, TechnoBuffalo solicits leaks from tech insiders:

Have some inside information on a brand new device? Discover something top secret in your store’s inventory? We want to hear from you! At TechnoBuffalo we always treat our sources like the super secret ninjas they are. If you want your identity kept secret, we will take your name to the grave. If you want your name to be known, we will always give proper credit, and make sure you get the recognition you deserve. Tips and news are the lifeblood of a tech site, and we thank you for keeping us alive.

Calling the site “disconcerting,” Panter wrote in the July 13 order that TechnoBuffalo “is inviting conduct which may or may not be legal and is very likely actionable.” The site’s solicitations, Panter continued, “are particularly detrimental to the intellectual property industry so reliant upon employee confidentiality and so sensitive to how and when their new concepts are disclosed.”

Panter also lamented that the “subversive conduct” TechnoBuffalo encourages has little social value.

“Unlike other famous secrets whose sources were protected in order to inform citizens of government corruption and public misconduct,” Panter wrote, “the sole purpose of the TechnoBuffalo solicitation is to promote TechnoBuffalo, without a second thought as to what harm it may cause lawful and productive companies whose stolen information it leaks.”

After Johns-Byrnes filed an action against TechnoBuffalo to obtain the leaker’s name, Panter initially granted the request. TechnoBuffalo then asked Panter to reconsider his ruling and provided additional affidavits and other documents in support of its argument that the leaker’s identify was protected by Illinois’ statutory reporter’s privilege.

Illinois’ privilege is simply stated and broad: “No court may compel any person to disclose the source of any information obtained by a reporter except as provided in Part 9 of Article VIII of the Act.” Part 9 allows a court to divest a reporter of the privilege if the requested information does not concern matters required to be kept secret, all other sources of the information have been exhausted and disclosure is essential to protect the public interest.

Somewhat reluctantly, Panter agreed that the privilege protected TechnoBuffalo’s source. The judge said TechnoBuffalo fell within the law’s broad definition of “news medium,” that the leaked information constituted “news” and that the personnel who wrote and edited the article about the leak qualified as “reporters” under the law. Panter therefore could conclude only that the privilege applied.

“[T]he reporter privilege is deeply ingrained in our culture and has always been jealously guarded, even when, or especially when, it is used for purposes which are less than admirable,” Panter wrote. “TechnoBuffalo is correct that our laws have not found a way to distinguish what they do from the most elevated journalistic traditions, our only access to the shocking revelations and insidious secrets that journalists bring to light. Encouraging and enabling people to violate relationships of trust with their employers and to steal proprietary information may be odious … [h]owever, as of this writing, it cannot be excluded from the broad protection of the journalistic privilege.”

Panter then held that Johns-Byrnes had not satisfied the burden necessary to warrant divestiture, primarily because it had not shown that it had exhausted all other avenues to determine the leaker’s identity.

Noting that his opinion likely “is not the last word on this issue,” Panter invited Illinois’ appellate courts and legislators to consider whether the state’s reporter’s privilege should safeguard conduct like that encouraged by TechnoBuffalo. As Panter correctly recognized, however, unless and until the law changes, websites, their employees and their sources are entitled to the law’s protection.

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