Target Corp vs John Doe

Atlanta Business Chronicle
Friday 9-15-06
By Justin Rubner, Staff Writer

Suit: Blogger posted Target trade secrets

Target Corp. is on the hunt for a feisty blogger who has allegedly posted the retail giant’s secrets on the Internet.

The Minneapolis-based company is suing the unidentified "John Doe", who is believed to live in Georgia, in Federal Court for posting Target’s anti-theft procedures on Web sites and various retail employee forums on the Internet in July.

The information is used to secure Target’s merchandise from shoplifters and other wrongdoers. Target says in a court filing it is provided to employees on a "need-to-know" basis.

To find out who the "John Doe" is, Target is seeking the help of AOL, Yahoo!Inc. and Microsoft Corp. It’s unclear whether these companies will comply, though.

The lawsuit, filed Sept. 5th in Federal Court in Atlanta, follows a two and a half month campaign that included efforts to get the multiple postings deleted from various message boards.

It also follows the publishing of Wal-Mart Stores Inc.’s recent theft-prevention policy change, leaked to the New York Times in July, which said shoplifters would no longer be charged for stealing less than $25 in goods.

Shoplifting is a $10 billion to $13 billion a year nightmare for U.S. retailers, according to California-based retail security expert Chris McGoey, also known as the "Crime Doctor". Even though stores such as Target and Wal-Mart rack in tens of billions of dollars of sales annually, shoplifting can account for up to 3 percent of those sales every year, he says.

"That’s profit they should have gained," said McGoey, who advises almost every national retail chain in the country.

Target operates more than 1,400 stores, including 45 in Georgia.

Target’s lawsuit illustrates the lengths to which companies will go to protect secret information from reaching the masses, said Jason Bernstein, an Atlanta-based intellectual property attorney at Powell Goldstein LLP. He says Target is trying to send a clear message to rogue posters that the publishing of trade secrets is something the company will not stand for.

"It’s demonstrating to me an incredible awareness these companies have of the importance of their trade secrets and confidential info because they rely on them to increase sales and prevent theft," Bernstein said. "Companies like Target, they’re also trying to send a statement to the industry. They’re probably very upset over this."

In the lawsuit, Target claims the postings have already led to losses and that they provide "potential wrongdoers with the blueprint for circumventing Target’s security procedures." The policy which Atlanta Business Chronicle obtained at targetunion.org, outlines in detail various rules, such as mandating that all thefts above $20 must be referred for prosecution and barring anyone from photographing employees who have been caught shoplifting.

If Target does ID the blogger, and he or she still refuses to cease the postings, the company faces some sticky issues, a First Amendment and intellectual property expert says.

For one, it is not known whether the poster ever signed a confidentiality decree. If the John Doe didn’t, then Target would have to prove the poster knew the policy was confidential, said David Bodney, a First Amendment and media rights lawyer with Phoenix-based Steptoe & Johnson LLP. Bodney, also a lecturer at Arizona State University, adds that Target would have to prove the postings had no legitimate purpose other than to malign. "It’s an uphill battle, he said.

However, he also points out that free speech is not absolute, especially if a judge decides – as Target claims – that the policy is a court-protected company secret.

"It’s a disappointing reality that our constitutional liberties are conditional," Bodney said.

According the suit, the poster obtained the 30-plus-page policy from a terminated Target theft prevention employee in Wisconsin. That employee allegedly e-mailed the policy to the John Doe and only knew the poster through his association with the anti-Target Web sites.

In July, just days after the employee posted the policy on targetunion.org, the suit says Target contacted the employee and demanded he delete it from the site and his computer. He allegedly obliged, but the John Doe never did – despite the fact that Target contacted the poster’s various e-mail accounts and posted messages on popular anti-Target Web sites demanding the practice to stop.

In response to one of Target’s postings, the blogger – who used screen names such as "Target Sucks" – allegedly wrote online "I didn’t sign any confidentiality agreement with them and really don’t give a rat’s ass if they like it or not." The poster also warned others on targetunion.org that Target law firm Faegre & Benson was monitoring the site, and published attorney Kerry Bundy’s e-mail address and phone number. In response, another poster wished "a million scrounger" on the law firm. A scrunge is a parasitic alien on Nintendo video games.

An e-expert was hard pressed to predict which side has the upper hand. Eugene Volokh, a University of California law professor who specializes in free speech issues, compares the case to four others: three involving Apple Computer Inc., and one involving Fort Motor Co. Apple has had mixed luck with its ongoing war against leakers in recent years. And Ford in 1999, lost a lawsuit regarding a blogger who posted corporate documents showing some negative information about the company’s vehicles. The site, blueovalnews.com, still exists today.

Protecting secrets or targeting free speech?

Target Corp. is suing a blogger for posting a secret theft-prevention policy online.

* The unknown poster is believed to live in Georgia
* Target is asking AOL, Yahoo! And Microsoft for help in locating the poster
* The policy has been posted on several sites, including retail-worker.com and targetunion.org

Source: Complaint No 1:06-CV-2116 filed in U.S. District Court in Atlanta.