Apple Agrees to Hold Subpoenas Against Web Sites

Apple Computer Inc. will stay subpoenas seeking information about unnamed individuals who have allegedly leaked trade secrets in its "John Doe" civil complaint, according to a representative of the Electronic Frontier Foundation, an organization centered on free speech and civil rights issues.

Annalee Newitz, a policy analyst for the Electronic Frontier Foundation, told eWEEK.com that Apple, which is represented by the San Francisco law firm of OMelveny and Myers LLP, has agreed to hold off on serving subpoenas until after the Superior Court of Santa Clara County, California, has held a hearing on the EFFs request for a protective order for its clients, two of the Web sites listed in Apples suit. EFF filed the request this week; a date for the hearing has not yet been set, but it may be held in early March.

The EFF represents Jason OGrady, who owns and manages the PowerPage Web site, and the pseudonymous Kasper Jade, who publishes the Mac-centric rumor site AppleInsider. The group is also working as co-counsel, along with attorney Richard Wiebe and the firm of Tomlinson Zisko, for Monish Bhatia, publisher of MacNN, which helps host the AppleInsider site.

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The goal of Apples suit is to uncover the anonymous sources who leaked information to the above sites about an upcoming, and still unreleased, Apple product code-named Asteroid, or Q97. This product was said to be a FireWire-based interface for Apples GarageBand music creation application.

Click here to read about Apples lawsuit against the site ThinkSecret.com.

According to Newitz, Apple received permission to issue subpoenas to find the identity of the people who passed along the information as part of the normal discovery process. Newitz said that Apple then issued a subpoena to Nfox.com, the ISP for OGrady, in an attempt to track electronic communications between OGrady and anyone who mentioned the word "asteroid."

Newitz said that "Apple may have a case" in suing anonymous individuals for violations of the Uniform Trade Secrets Act (the Act holds liable those who receive trade secrets that were knowingly misappropriated), "but the issue is how theyre getting the information." She said that Apples actions are following a "tortured route" and that the company seems to be attempting to "beat these journalists with litigation."

The EFFs position is that the Web sites in question are viable journalistic endeavors, which places their writers under reporter shield laws, both at the federal and state level.

The federal shield law, which is based on the First Amendment, guarantees the "free flow of information" and allows reporters to assure sources that they will remain anonymous.

"There is a loophole—its not that a reporter never has to give up information," Newitz said. "They can be forced to reveal sources only if every other source is exhausted." Newitz said that she felt Apple has not come close to examining other potential methods of identifying the parties who leaked confidential information; she said that to her knowledge, Apple has never performed or admitted to performing an internal investigation into NDA (nondisclosure agreement) violations.

"Apples tried to do an end run around the shield laws," Newitz said.

She added that the court should decide on the protective order "fairly soon." Should it grant the order, Apple would be prevented from filing subpoenas against their clients to get information about the identity of their sources, as well as demanding any unpublished documents related to the resulting stories.

Apple representatives were unavailable for comment.

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