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A California court ruled Friday that an online journalists ISP must reveal the identities of the reporters confidential sources to attorneys from Apple Computer Inc., rejecting a request for an order to protect the confidentiality of the sources and other unpublished information.
“…The United States and California Supreme Courts have underscored that trade secret laws apply to everyone regardless of their status, title or chosen profession,” reads the ruling by Santa Clara County Superior Court Judge James Kleinberg.
“The California Legislature has not carved out any exception to these statutes for journalists, bloggers or anyone else.”
For those reasons, Kleinberg wrote, the court found that the posting of information about an upcoming product from Apple code-named “Asteroid” passed the thresholds necessary for discovery to proceed.
Apple filed a lawsuit Dec. 13, alleging that an unknown person released confidential information pertaining to 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Apple subpoenaed Nfox, the ISP for PowerPage.com publisher Jason OGrady, as well as unpublished materials OGrady obtained while gathering information for an article about Asteroid.
Fridays ruling grants Apple permission to issue subpoenas directly to PowerPage and to another site, AppleInsider, for similar information. The subpoenas have not yet been issued.
“Its a bad ruling,” said Cindy Cohn, legal director for the EFF (Electronic Frontier Foundation), which is representing OGrady, AppleInsider and PowerPage.
“Its a bad ruling in a way thats bad for all journalists, not just our guys.”
Whats particularly ominous for journalists of all stripes, be they print or online, freelance or associated with a media outlet, is how the court has overlooked the importance of protecting journalists sources in such a relatively trivial matter as an Apple product launch, Cohn said.
“I think that the court is taking a dim view: The mere assertion that theres a trade secret on [Apples] side kills the journalists” right to protect confidential sources, she said.
Compare that with the courts upholding of journalists rights to keep sources confidential, for example, in a case such as the Pentagon Papers trial, Cohn said—a situation in which the government claimed that national security was at stake.
“Despite the fact that there was a claim that there was national security [at stake] and [the information] was classified, the court still upheld the journalists rights,” she said. “Apples concerns are certainly less than the nations in wartime.”
A landmark case
The case is landmark in that it was the first in which a court heard arguments that online reporters confidential sources and unpublished materials are protected by both the reporters shield in the California constitution and the reporters privilege under the federal First Amendment.
Kleinberg cited various statutes—Integral Dev. Corp. v. Weissenbach and Magnecomp Corp. v. Athene Co.—saying that they “support the compelling interest of disclosure which may, in the proper civil case, outweigh First Amendment rights.”
According to Cohn, Apple tried to paint the journalists as “at-home journalists working in their pajamas.”
But PowerPage receives some 300,000 hits per month, giving it a larger audience than most hometown newspapers, Cohn pointed out.
Regardless, whether the journalists are “legitimate” or not did not pertain in the ruling.
The court did not restrict the ruling to online journalists, instead deciding that all journalists could be required to reveal confidential sources when a claim of trade secret is raised.
The EFF will ask the California Appellate Court to intervene, petitioning for a Writ of Mandate, which will likely be filed next week, Cohn said.
In the meantime, the EFF is talking with journalist organizations in a quest for amicus briefs.
Already, media outlets such as the San Jose Mercury News have published editorials decrying Apples heavy-handedness. (This link requires free registration.)
It is all in keeping with Apples traditional cloak-and-dagger approach to product releases.
In late 2002, for example, the company sued a contractor who had left the company after he posted information about yet-unreleased Power Macintosh G4 desktop models.
Apple did not return calls requesting comment by the time this article was published.
