The Electronic Frontier Foundation on Wednesday filed an appeal as it seeks to block Apple Computer Inc. from getting its hands on a reporters confidential sources.
The appeal concerned a ruling earlier this month by a California court that declared that an online journalists ISP must reveal the identities of the reporters confidential sources to attorneys from Apple. The ruling rejected an earlier request from the EFF for an order to protect the confidentiality of the sources and other unpublished information on behalf of the online news sites AppleInsider and PowerPage.
As the EFF pointed out in a release, this is a landmark case, it being the first in which a court heard arguments that an online reporters confidential sources and unpublished materials are protected by the reporters shield in the California constitution and by the reporters privilege under the First Amendment.
In his ruling, Santa Clara County Superior Court Judge James Kleinberg wrote that trade secret laws apply to everyone regardless of their status, title or chosen profession. “The California Legislature has not carved out any exception to these statutes for journalists, bloggers or anyone else,” he wrote.
For those reasons, Kleinberg wrote, the court found that the posting of information about Apples “Asteroid” passed the thresholds necessary for discovery to proceed.
Apple filed a lawsuit on Dec. 13, alleging that an unknown person released confidential information pertaining to an upcoming product from Apple code-named “Asteroid.”
Apple is suing several unnamed individuals, called “Does,” who allegedly leaked information about the product.
Apple subpoenaed Nfox, the ISP for PowerPage.com publisher Jason OGrady, as well as unpublished materials OGrady obtained while gathering information for an article about Asteroid.
The ruling grants Apple permission to issue subpoenas directly to PowerPage and AppleInsider for similar information. The subpoenas have not yet been issued, pending a seven-day waiting period during which appeals can be filed.
In the EFFs request for an appeal, it argues that the First Amendment should not be casually overlooked. “Many important news leaks, such as those revealing the dangers of cigarette smoking, can be claimed to be trade secrets by the companies seeking to stop them,” according to a release put out by the EFF, which is a nonprofit group of technologists, lawyers and volunteers.
EFF Seeks to Keep Apples Hands Off Reporters Sources – Page 2
“Apple must also demonstrate that it has done an exhaustive search elsewhere for the information it seeks before targeting journalists with court orders,” the release continues. “There is no evidence that Apple has done such an exhaustive search. ”
EFF Staff Attorney Kurt Opsahl said that the ruling is a dangerous precedent that threatens the freedom of the press. “The California courts have a long history of supporting and protecting the freedom of the press,” he is quoted as saying in the EFFs release. “The Court of Appeal will now get the opportunity to correct a ruling that endangers all journalists.”
Another freedom at risk in the court ruling is e-mail privacy, according to EFF Staff Attorney and Bruce J. Ennis Fellow Kevin Bankston.
“The Superior Courts ruling exalted statutory trade secret protection over constitutional rights, misapplied the test for when the constitutional reporters privilege may be overcome, and ignored the Stored Communications Act altogether,” he is quoted as saying in the EFFs release. “There are strong protections for e-mail privacy under federal law, especially when that mail is held by an ISP. Every e-mail service provider should be concerned about correcting this dangerous precedent.”