A decision by a local California judge poses grave threats to First Amendment protections for journalists, said a group of major media organizations in response to the latest actions in Apple Computer Inc.s suit involving some bloggers who let a few of Apples product plans out of the bag.
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.”
Opsahl also noted that the effort by Apple to obtain the bloggers e-mail contents is also prohibited by the Electronic Communications Privacy Act, a federal law that prohibits revealing any electronic communication except for very specific instances that involve criminal investigations or national security, and only then with a search warrant.
“The fact that there may be trade secrets here does not overcome the need to protect confidential sources,” said Lucy Dalglish, executive director of the Reporters Committee for Freedom of the Press. Dalglish said that the committee is a nonprofit legal defense and advocacy organization for journalists working in the United States. A number of major media organizations, including the San Francisco Chronicle, the Los Angeles Times, the San Jose Mercury News and the Bee newspaper chain in California have joined in the committees brief.
Dalglish also suspects that this could be an attempt by Apple to intimidate the bloggers. “If it had been an online report from a widely recognized electronic publication they wouldnt have even tried,” she said. “I dont think they would expect to go out and subpoena the L.A. Times phone records. The judge would have looked at it differently.”
In its brief, the committee points out that there is extensive case law that disagrees with Kleinbergs decision, including a number of decisions by the U.S. Supreme court. The EFFs Opsahl said that his organization will take this case as far as it needs to, including to the Supreme Court. Currently the appeal is in the hands of the California Court of Appeal, which has yet to indicate when or if it will hear arguments or when it might make a decision.
But whichever way it goes, the effects could be far reaching, especially in the way financial and technology news is covered. The Reporters Committee, for example, points out that some of the biggest stories of recent times, including the Enron scandal, could have been kept secret if the local judge is correct in his reading of the First Amendment.
“We think that this case not only affects these bloggers, but how we do our business as well,” said Dave Satterfield, managing editor of the San Jose Mercury News. “The judge says we should be prohibited from publishing trade secrets. Thats a slippery slope.
“It shouldnt be left up to companies to decide whats a trade secret,” Satterfield said. He also said that he thinks the courts will come down in favor of the bloggers and the media. “Were hoping that truth and justice will prevail,” he said.
Everyone contacted by eWEEK.com for this story expressed surprise that Apple of all companies would take this tack. Most recalled the now-classic commercial that Apple ran during the 1984 Super Bowl in which a young woman throws a hammer at a screen, destroying the image of a giant Orwellian figure, suggesting that now Apple is filling the role of Big Brother. Satterfield had another take. “To me its a little bit surprising that Apple is doing this,” he said. “Didnt they run the ad encouraging people to rip music?”
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