Lesson learned from Apple’s iPhone SDK agreement disclosure, beware of the Freedom of Information Act if a US gov’t agency signs

Having been an ex-Microsoft, I learned this lesson if you have a gov’t agency sign an NDA or confidentiality agreement watch out for Freedom of Information Act.

The act explicitly applies only to federal government agencies. These agencies are under several mandates to comply with public solicitation of information. Along with making public and accessible all bureaucratic and technical procedures for applying for documents from that agency, agencies are also subject to penalties for hindering the process of a petition for information. If “agency personnel acted arbitrarily or capriciously with respect to the withholding, [a] Special Counsel shall promptly initiate a proceeding to determine whether disciplinary action is warranted against the officer or employee who was primarily responsible for the withholding.” [6] In this way, there is recourse for one seeking information to go to a Federal court if suspicion of illegal tampering or delayed sending of records exists. However, there are nine exemptions, ranging from a withholding “specifically authorized under criteria established by an Executive order to be kept secret in the interest of national defense or foreign policy” and “trade secrets” to “clearly unwarranted invasion of personal privacy.” [6]

The Electronic Freedom Foundation used this to get a copy of Apple’s iPhone SDK agreement reports NetworkWorld.

EFF publishes iPhone developer agreement

By Dan Moren, Macworld
March 09, 2010 02:02 PM ET

If you've followed the news of App Store rejections over the past couple years, you may have wondered what exactly is engraved upon the stone tablets that govern the terms of Apple's App Store and developing for the iPhone. The trouble is we haven't been able to tell you, as the agreement itself contains terms that prohibit publicly discussing it. But on Monday, the Electronic Frontier Foundation (EFF) legally obtained and published a copy of the agreement for the first time.

In order to do so, it had to take advantage of a legal loophole. EFF noticed that NASA had created an application for the iPhone, and NASA--being a government agency--is subject to the Freedom of Information Act. EFF requested a copy of the SDK agreement and a revision dated March 17, 2009 was provided.

If you have confidential information you may want to think about your disclosures to federal gov’t agencies.

The author makes a closing statement.

For my part, as somebody writing about these issues, the most frustrating part of the agreement has been the ban on public statements. I can see why Apple believed it was in its interest to keep the agreement private, but in the long term I think it's done more harm than good, both in terms of contributing to the perception of Apple as overly secretive and by gagging developers from speaking publicly about their issues. Apple's platform remains wildly popular despite what some consider Byzantine restrictions--the company shouldn't be afraid of a little discussion.

And some of his points are why for the Open Source Data Center Initiative we are have adopted the practices of openness and transparency for what we will be doing.