So imagine this: An employee works for a software company. He discovers a problem with the software, tries to warn the company, but it does nothing. He quits, and then sends email to all the customers of the company, informing them of the security problem with the software. The flood of emails brings the email server down for a bit, but that admittedly does not cause significant damage. Nonetheless, the employee is criminally prosecuted for causing an "impairment to the integrity" of a computer system (by revealing its flaws) which resulted in more than $5,000 in damage (because now it was known to be flawed).The story has a happy ending. Sort of. An appeals court judge vacated the earlier ruling (although the ex-ex-con served 16 months).The employee is found guilty. He is sentenced and serves (yes, he actually serves) 16 months in a federal prison.
Technically, though, I'm assuming the employee was found guilty due to having signed a nondisclosure agreement while he still worked at the company (and which was probably still in effect when he sent the email). It's not clear to me where the line is between revealing trade secrets and whistle-blowing; at the very least, it's not as clear as Lessig's claim that, "it can't be 'damage' to tell the truth about some company's software--however ugly that truth might be." In fact, there are enormous numbers of "ugly" things that should be protected, to some extent. Privacy for example. Back doors to software. Credit card numbers, when stored in a database or file. And, yes, sometimes trade secrets (real ones, that is, not the overly broad type frequently claimed by companies just to bully people around, like Diebold's attempts to shut down criticism of its voting machines [eff link]).
So while Lessig's nameless employee may have been on the side of justice and right here, we need to be careful about making this a banner case. Maybe it's more complicated than it's been portrayed. (I'll admit here that I've only read Lessig's entry on this, not the PDF of the decision that he links to.)
Posted by johndan at October 17, 2003 05:48 PM
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