The decision, made by Judge James Kleinberg of the Santa Clara County Superior Court, said that journalists are not protected by the First Amendment to the U.S. Constitution, or by Californias shield law, when they publish trade secrets. The decision stemmed from Apples attempts to force the bloggers involved to reveal their confidential sources. In addition, Apple is also attempting to subpoena e-mail content from the bloggers Internet service providers.
Last week, the judges decision was appealed by the Electronic Frontier Foundation, which is representing the bloggers, Jason OGrady, Monish Bhatia, and Kasper Jade. Apple is not charging that the bloggers stole the trade secrets. Instead, the company has sued 25 unnamed individuals, apparently Apple employees, and wants the bloggers records and e-mail to finger the guilty parties.
According to the amicus curiae brief filed by the Reporters Committee for Freedom of the Press last week, Apple has made little effort to find the people at the company who may have leaked the information itself. As the brief (provided to eWEEK.com by the LA Times) notes, there has been no effort to depose employees, check its own computer records or even request help from third-party investigators. In fact, a number of observers have suggested that the actions by Apple are really intended to intimidate the bloggers and the press rather than find the information the company says it wants.
"If this had been Ziff Davis, Apple would never have tried this," said Kurt Opsahl, a staff attorney for the EFF who is handling the legal challenges for the bloggers. Opsahl said that the case has reached the point where the question is no longer whether the bloggers were journalists, because the judge had already said they were. He said that the case now goes beyond that question into dangerous constitutional waters.
"What makes journalism journalism isnt the form but the content," Opsahl said, "rather than whether its distributed on paper or on the Internet or whether its in the form of blogs, e-mail newsletters or Web sites, its entered the national discourse.
"The advent of the Internet has democratized media and allowed any individual to reach out to an audience without the constraints of traditional media." Opsahl continued. "Theres no way of drawing a distinction on journalists based on the medium in which they publish."
He said that by making the decision he made, the judge was trying to make new law where none existed. "The court is creating a new exception for trade secrets," Opsahl said. "It would reduce any journalist covering the financial or trade press to report only press releases or press conferences."