A finding by a state judge that would allow Apple to pry the namesof confidential sources from three online journalists has been appealed to ahigher court.
The Electronic Frontier Foundation (EFF) filed an action on Tuesdayappealing the ruling of California Superior Court Judge James Kleinbergthat three bloggers — Monish Bhatia, Jason O’Grady and an individual identified as “Kasper Jade” — couldnot protect the identities of their sources by invoking rights under constitutional and state law.
Apple’s confrontation with the bloggers stems from a lawsuit it filed inDecember against 25 unnamed persons believed to be employees of the companywho it alleges leaked trade secrets to the bloggers about a product code-named Asteroid.
Innovation as DNA
As part of the discovery process in that case, Apple’s lawyers want thebloggers to cough up the names of their confidential sources, and theywant the bloggers’ e-mail providers to turn over the writers’ electroniccorrespondence so they can comb it for evidence.
According to Apple spokesperson Steve Dowling, the company had no comment onthe EFF’s move other than to reiterate comments made when it filed itslawsuit last year.
“Apple has filed a civil complaint against unnamed individuals who webelieve stole our trade secrets and posted detailed information about anunannounced Apple product on the Internet,” Dowling wrote in an e-mail toTechNewsWorld. “Apple’s DNA is innovation, and the protection of our tradesecrets is crucial to our success.”
Did Court Get It Wrong?
In its action filed with the California Court of Appeal, the EFF declared:
“In a decision whose sweeping terms threaten every journalist, whetherpublishing in print, radio, television, or on the Internet, the trial courtdenied the protective order and held that a journalist’s publication ofinformation that a business deems a trade secret destroys the constitutionalprotections for the journalist’s confidential sources and unpublishedinformation.”
“We think the court got it wrong,” EFF staff attorney Kurt Opsahl toldTechNewsWorld.
Trade Secrets Trump Civil Rights
Not only does the trial court decision run afoul of the First Amendment ofthe U.S. Constitution, the San Francisco-based organization wrote in itsappeal, it also violates the Liberty of Speech Clause of the California Constitution, thestate’s reporter shield law and the federal Stored Communications Act,which regulates access to e-mail by third parties.
“The court is exalting statutory protection for trade secrets over theconstitution,” Opsahl maintained.
While journalists have privileges under the First Amendment, they arequalified privileges, noted Paul Levy, an attorney with Public Citizen, aconsumer action group in Washington, D.C. “If there’s a strong case to bemade on the merits, and a plaintiff has no other way to get the information,then, by and large, the press’s interest is going to yield,” he toldTechNewsWorld.
But before that interest must be yielded, a plaintiff must exhaust all otheravenues of discovery to obtain the information held by the reporter, Opsahlexplained. “We don’t believe that they [Apple] have done an exhaustivesearch,” he said.
“You worry about situations in which the first place that the plaintiff goesis to question the journalists because of the chilling effect that has onpeople’s willingness to talk to the media,” Levy added.
That chilling effect would especially be felt by scribes reporting on largecompanies, according to Dan Kennedy, the media columnist for the BostonPhoenix. “Publishing secrets about a company that everyone is as interestedin as Apple is obviously something anyone would want to do,” he toldTechNewsWorld. “Now suddenly it looks like a much more dangerous thing todo.”
He saw parallels between the Apple case and the Valerie Plame affair. Plamewas named as a CIA operative by a news columnist; the leak of her identity was a violation of federal law. An investigation into wholeaked that information to the columnist is currently being conducted byfederal authorities.
In the Plame case, Kennedy noted, the Bush Administration couldn’t fingerthe leak, so it adopted a strategy of “let’s threaten all the journalists whowrote about this, or in some cases, didn’t write about it, with prison.
“Steve Jobs is going after the leakers in his own company by going after therecipients of those leaks,” Kennedy explained.
And the fact that those recipients are bloggers might also have influencedApple’s decision to shake them down for information, he added. “It’s a loteasier to go after some kid with a blog than it is to go after a major mediaorganization,” he said.