Intel’s push for secrecy threatens users

Don't petition for non-disclosure, says Tom Yager

Intel has got thumped in Japan for violating that nation’s anti-monopoly laws. The Japan Fair Trade Commission (JFTC) found that Intel coerced system makers into limiting or eliminating AMD processors in their products. The punishment seemed light: fessing up in public and sending letters to customers to let them know that Intel’s gravy train wasn’t permanently parked. It may be that the JFTC knew that AMD would come along behind to inflict a more severe spanking in the form of a lawsuit.

Intel saw an out. It petitioned the Tokyo District Court to block disclosure of the JFTC’s evidence against it. If AMD wanted to pursue the matter in civil court it would have to start over, gathering its own evidence without the benefit of the legwork a government agency had already done. Fortunately, the Tokyo District Court protected freedom of the press and the public’s right to know.

AMD’s media releases on the AMD v Intel lawsuit in the US seek to steer public sentiment in AMD’s favour by portraying the case as one it’s fighting on behalf of the processor market. It’s not AMD’s job to fight that fight, and what’s more, it can’t — AMD v Intel isn’t the People v Intel. AMD is in court representing itself, looking for the kinds of specifically targeted redress that civil litigants can obtain through the courts, primarily damages.

AMD couldn’t require, for example, that Intel agree to reimburse OEMs for the higher prices they paid for components because Intel’s market control fixed those prices.

In effect, the processor market has no representation in AMD v Intel. AMD could walk away a winner and leave Intel humbled and out a little pocket change, but the market might learn nothing: nothing about how anti-competitive behaviour harms the market (not just AMD); nothing about civil process, nothing about how computer components are bought and sold; nothing about how their prices are determined; nothing about their impact on the economy; nothing about the special rules applied to the behaviour of companies that dominate their segment, and nothing about how companies protect themselves from malicious litigation.

In short, we’d learn nothing more than that AMD got some cash from Intel. If AMD loses, being in the dark about the evidence and circumstances harms the public’s interests just as much.

Intel’s petition in Japan makes a pre-emptive petition to block the disclosure of evidence in the US AMD v Intel case a certainty. It’s up to Delaware Federal District Court and Judge Joseph Farnan to decide whether the media has access to the evidence that AMD and Intel gather for trial. It’s vital that we do, because there’s no point in trusting the litigants to look out for the people’s interests. Journalists do that. I take guarding and exercising the public’s right to know as seriously as a physician takes the Hippocratic Oath.

I feel strongly about transparency in justice — transparency as a means to inform, educate, motivate and involve the public. That’s the media’s duty: to function as a conduit to the public for that which you have the right to know.

Every party that risks embarrassment from disclosure of a particular body of evidence is going to claim an extraordinary need for non-disclosure. However, we depend on a judicial system that understands that the people’s right to disclosure is extraordinarily more important.

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