[Editor’s note: I know Wendy Goldman Rohm. I worked with her when I was at InformationWEEK. She is a top notch journalist, and her sources are impeccable. This column is under submission to some “real” web sites, but in case they don’t run it, I wanted to post it here]

By Wendy Goldman Rohm

In three separate legal actions, Microsoft has been using the courts in an attempt to smoke out sources, challenge the first-amendment rights of writers and reporters, and chill press coverage and public disclosure of important information that it prefers remain secret. Two of these cases have been conducted publicly, and one in secret.

In early October, Microsoft subpoenaed the source materials of Dan Goodin, a reporter for the online news organization C/NET, and a hearing on the matter will take place next week. Appealing a lower court decision that denied its demand for source materials, Microsoft is still pursuing access to these materials from the authors of “Competing on Internet Time,” Harvard professor David Yoffie and MIT professor Michael Cusomano.

Less known are Microsoft’s activities to determine the confidential sources of my articles and my best-selling book The Microsoft File, published in August by Random House, through a bizarre motion filed under seal against Caldera Inc., which has sued the software giant for antitrust violations.

Through these legal pursuits, Microsoft apparently is not seeking to protect trade secrets or sensitive competitive information, as none was betrayed in any of these instances. Instead, the company seems to be engaged in a campaign of intimidation against confidential sources and whistle blowers, who make such reports possible.

With these important issues pending in court in three separate cases, it is in the public interest that the first amendment rights of the press be upheld, and that Microsoft be reprimanded for misusing the courts for its own hunt for whistle blowers in an attempt to prevent the press from doing its job.

It is fascinating to see that Microsoft’s statements in court papers in these cases have not jibed with the company’s intentions disclosed privately behind the scenes, to lawyers and others privy to each case. In the case of C/NET, reporter Dan Goodin was subpoenaed by Microsoft after quoting from confidential company documents in two articles about the company’s legal wrangles with Sun Microsystems, which sued the software giant for breach of contract and antitrust violations.

In court filings, Microsoft claimed that it knew without question that Sun was Goodin’s source, despite the fact that the documents in question were in the possession of numerous people at a number of organizations–including the Justice department. “Microsoft has the legal burden to eliminate all possible sources of information before trampling on someone’s First Amendment rights,” said Kent Raygor, a C/Net attorney representing the Goodin case.

He believes Microsoft is clearly on a hunt for Goodin’s confidential sources, a violation of Goodin’s privilege as a reporter under California law and protected by the First Amendment.

To prove that Microsoft’s intentions were to shake down sources, versus to regain intellectual property, C/Net’s Raygor disclosed a private interaction between himself, two others in his office, and a Microsoft lawyer.

According to Raygor, he and his colleagues were told in an informal meeting with a Microsoft attorney, “We’re not claiming we own the documents as many people have them, including the DOJ. We’re just trying to find the source.” When Raygor recounted this in a court document, the Microsoft attorney was removed from the case by Microsoft, Raygor said. Perhaps the oddest of Microsoft’s recent court activities is the motion it filed against Caldera Corp..—a motion for contempt filed under seal, although little of any of the information contained in it could be classified as confidential or betraying company secrets.

The history of this parallels the facts collected by C/NET showing that Microsoft appears to be misusing the courts in an effort to put a chill on the press and public debate. Shortly after my book The Microsoft File was published by Random House in late August, I got a call from a Microsoft insider, who said, “Microsoft is vowing to find out your sources.” What followed next seemed to be the denouement of Microsoft’s campaign to smoke out informants, even through process of elimination.

Shortly after that phone call, in late September, its contempt motion against Caldera was filed, accusing the company of being the source of most of my information in recent articles and in the book. As part of the motion, Microsoft put my entire book “The Microsoft File” into evidence, and stated that the book was filled “throughout” with confidential Microsoft information. Microsoft, however, seemed to be contradicting its own public statements, and because of that, clearly had reason to file the motion so it would not be seen by the public.

Since its publication, Microsoft has aggressively been on a campaign informing the media worldwide that “The Microsoft File” is a work of “fiction.” But how could a work of fiction be filled with confidential Microsoft information? The software giant seemed to be talking out of both sides of its mouth.

Going further with its gunshot approach and hunches about sourcing, Microsoft, referring to an article of mine that was broadly picked up by other news organizations, states in its secret motion, “There can be no doubt that Caldera was the direct or indirect source of Ms. Rohm’s information, and Caldera’s decision to provide information from [a deposition] to Ms. Rohm was in direct violation of the protective order.”

That statement is false. Caldera was not the source of deposition information for that article. I would normally have no comment whatsoever on who may or may not have been a source of mine. But in this case I am aware that Microsoft is making allegations that are false, and will result in great injustice if not stopped.

Similar to the Goodin case, Microsoft had made a sweeping judgement without having done the investigation required by the court before filing such motions to show that there were not other possible sources. The accuracy of their accusations did not seem to matter to Microsoft–as the company is accomplishing its goal of forcing reporters to comment on confidential sources, and by process of elimination, target its suspects.

It is important to note that, while using subpoenas and unfounded contempt motions in an attempt to censor leaks it decides are unfavorable to the company, Microsoft has been selectively leaking its own internal documents to reporters, in an effort to fuel positive stories about the company. On November 30, Microsoft’s PR department leaked to a number of reporters an internal memo written by Bill Gates in which he pontificates on the significance of the merger between America Online and Netscape, a document that attempts to show that the Justice Department’s ongoing case against Microsoft is meaningless. It succeeded in having the national and international news media quote from this document.

More embarrassing for Microsoft have been leaks that show that Microsoft–in the words of Microsoft’s own senior executives– has apparently engaged in predatory acts that it has publicly denied. These include its predatory campaigns against Sun Microsystems, illuminated by Goodin’s articles, as well as the many instances of predation against a range of companies over the past decade–as detailed in my book and articles.

“Microsoft is attempting to chill public debate regarding its controversial marketing strategies by waging a campaign of intimidation against journalists and academics who write stories or studies it perceives as unfavorable and the confidential sources who make such writing possible,” Raygor states in court papers.

Reporter Dan Goodin, in an interview with me, said, “It’s an outrageous attempt to control the press. In both Caldera and in my case, Microsoft seems to be making bizarre leaps of judgment. This is a pattern of harassment.” Jane Kirtley, executive director of the Reporter’s Committee for Freedom of the Press, Arlington, VA, said Microsoft has misused the legal system and is stepping on the first-amendment rights of reporters.

Finally, Microsoft’s efforts at squelching negative information about the company may result in some far more serious charges. Inquiries are now underway into allegations that Microsoft has tampered with the testimony of witnesses. Both the Justice Department and private litigants have been concerned about evidence suggesting such tampering since last summer, and the issue may come up during the DOJ trial as well as in the private cases of Caldera and Sun Microsystems.