Judge Makes Tentative Ruling Against Sites in Apple Case

He says three Web sites cannot seek protection under journalist shield laws; analyst says the ruling is not binding.

On Thursday, Judge James Kleinberg of the Superior Court of Santa Clara County, California, issued a tentative ruling that three Web sites cannot seek protection under journalist shield laws.

At issue is whether these sites are viable journalism and therefore protected from subpoenas from Apple Computer Inc. of Cupertino, Calif., which filed a lawsuit to discover information pertaining to anonymous sources who revealed data about an upcoming Apple product.

According to Annalee Newitz, an analyst at the EFF (Electronic Frontier Foundation)— which is supplying legal counsel for Powerpage.org and AppleInsider, two of the sites named in Apples complaint—what Kleinberg issued was a "tentative ruling," and was not binding.

The use of a tentative ruling is "something new for this court," Newitz said.

"It is a courtesy to parties, to give a sense how the court is leaning."

/zimages/4/28571.gifClick here to read more about Apples agreement to stay the subpoenas.

However, Newitz said, Kleinberg did not give the reasons for his preliminary decision.

According to Newitz, Apples lawyers argued that PowerPage and AppleInsider are not valid journalistic outlets and therefore are not subject to U.S. and California constitutional protections, nor to California reporter shield laws.

This argument is based not on their appearance on the Internet, Newitz said, but on their practices.

Newitz added that lawyers for Apple cited the code of ethics of the SPJ (Society of Professional Journalists) in support of their argument.

However, Newitz said, the EFF contacted the SPJs ethics committee, which then sent a letter to Apple, protesting its actions.

Representatives of the SPJ could not be reached for comment.

Lawyers for Apple and the Web sites met Friday with Kleinberg in a hearing to finalize the ruling on whether the sites will or will not be afforded legal protection as journalists.

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