April 12, 2005, 11:05 AM — A coalition of mainstream media publishers are supporting blog-based journalists in their efforts to protect confidential sources. They are joined by Internet industry representatives concerned over the privacy of email.
The mainstream media organizations have filed friend-of-the-court briefs with the California Court of Appeals. In doing so, the publishers are not only defending First Amendment rights, but also recognizing blog-based writing as a form of journalism.
Apple vs. the bloggers
The move is the latest twist in a case that pits Apple Computer against three online publishers, PowerPage, Apple Insider and Think Secret. The sites earned Apple's wrath by publishing information about a Firewire audio interface for Apple's Garageband music application.
Santa Clara County Superior Court Judge James Kleinberg had ruled that Apple could force the publishers to reveal sources that disclosed information about unreleased Apple products. The Electronic Frontier Foundation (EFF), representing the publishers, is appealing the Court's earlier decision in the case, which allows Apple to subpoena a journalist's email to discover their source of information.
In his decision, Kleinberg ruled that the websites were, in effect, dealing with stolen property. "The right to keep and maintain proprietary information as such is a right which the California legislature and the courts have long affirmed and which is essential to the future of technology and innovation in general," wrote Kleinberg. "The court sees no reason to abandon that right, even if it were to assume ... movants are 'journalists.'" Kleinberg ruled that trade secret law took precedence over any First Amendment rights issues.
"The coalition of newspapers and media organizations recognized that the trial court's disregard for the First Amendment would broadly chill reporting by all journalists, regardless of medium," said EFF Staff Attorney Kurt Opsahl.
In their filing, the news publishers argue that the trial court incorrectly allowed trade secret law to trump First Amendment rights, and that Apple has failed to exhaust all other alternative sources for the information it seeks. The brief is signed by industry heavyweights, including the Associated Press, the Hearst Corp., the Los Angeles Times, the San Jose Mercury News, the Society of Professional Journalists, and the Student Press Law Center.
Internet Industry Joins Fight Against Apple
The US Internet Industry Association and NetCoalition, also filed a friend-of-the-court brief. The organizations represent Internet companies; including Internet service providers (ISPs), search engines, portals, and hosting services.
These trade associations argued that the journalist's email messages are protected under the federal Stored Communications Act. They further contend that if the trial court decision is not reversed, it will place an undue burden on service providers and will severely compromise email users' privacy.
"The Internet industry's support illustrates the widely accepted rule that email service providers are prohibited by federal law from disclosing users private email in civil disputes," added EFF Staff Attorney and Equal Justice Works/Bruce J. Ennis Fellow Kevin Bankston.
Apple is suing several unnamed individuals called "Does," who allegedly leaked information about unreleased Apple products. Apple has subpoenaed Nfox, the ISP for PowerPage.com publisher Jason O'Grady, demanding that it turn over the communications and unpublished materials O'Grady obtained while he was gathering information for his articles. Apple has also been granted permission to issue subpoenas directly to EFF's clients for similar information.
ADDITIONAL RESOURCES
Apple Can Force Publishers To Reveal Sources
