Dan Gillmor posts a fairly compelling argument that there is a gathering storm to ensure bloggers are not defined as journalists. H.R. 581 is worrisome, but some commenters refuse to sing along with the chorus that Apple’s favorable “Think Secret” ruling is a threat to free speech or bloggers.

Steve, for example:

I also fail to see what’s wrong with Apple’s suit. Calling Think Secret a blog is a bit of a stretch, for one thing – it’s just a commercial website selling advertising space, period. And if they knowingly solicited Apple employees or other NDA-covered persons to break their NDA’s, then that is against the law. Apple isn’t even suing for damages from what I understand, they are just suing to get the names of their own employees who have broken their NDA’s. That sounds like normal business to me – the NDA’s don’t mean anything if they can’t be enforced (including discovery). How’d you like it if a commercial operation like Think Secret posted your personal information, and you had no recourse to find out at least how they got it?

Good point. If you’re going to have NDA’s, they have to mean something. Now, you could make an argument that open source development is a smarter business model than a world of NDAs and encrypted business plans, but is it the blogosphere’s or a journalist’s place to force companies to reveal its trade secrets?

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.

Again, you may not like NDAs, but NDAs are legally binding contracts. Companies that choose to use NDAs should have the right to enforce them. This isn’t a threat to free speech. It’s a threat to innovation, unless you believe that the only way to innovate is to do so through open source, and I think that’s a coin toss. There is a compelling argument to be made that  private enterprise will have little incentive to innovate if businesses can’t maintain the competitive advantage of deploying a new product when its ready for market, which means competitors must play catch up. A world where Apple can’t keep secrets is a world where Apple can’t innovate. I prefer a world where Apple can innovate.