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EFF Appeals Apple Bid To Grab Bloggers' Sources

By John P. Mello Jr.
Mar 24, 2005 7:47 AM PT

A finding by a state judge that would allow Apple to pry the names of confidential sources from three online journalists has been appealed to a higher court.

EFF Appeals Apple Bid To Grab Bloggers' Sources

The Electronic Frontier Foundation (EFF) filed an action on Tuesday appealing the ruling of California Superior Court Judge James Kleinberg that three bloggers -- Monish Bhatia, Jason O'Grady and an individual identified as "Kasper Jade" -- could not 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 in December against 25 unnamed persons believed to be employees of the company who 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 the bloggers to cough up the names of their confidential sources, and they want the bloggers' e-mail providers to turn over the writers' electronic correspondence so they can comb it for evidence.

According to Apple spokesperson Steve Dowling, the company had no comment on the EFF's move other than to reiterate comments made when it filed its lawsuit last year.

"Apple has filed a civil complaint against unnamed individuals who we believe stole our trade secrets and posted detailed information about an unannounced Apple product on the Internet," Dowling wrote in an e-mail to TechNewsWorld. "Apple's DNA is innovation, and the protection of our trade secrets 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, whether publishing in print, radio, television, or on the Internet, the trial court denied the protective order and held that a journalist's publication of information that a business deems a trade secret destroys the constitutional protections for the journalist's confidential sources and unpublished information."

"We think the court got it wrong," EFF staff attorney Kurt Opsahl told TechNewsWorld.

Trade Secrets Trump Civil Rights

Not only does the trial court decision run afoul of the First Amendment of the U.S. Constitution, the San Francisco-based organization wrote in its appeal, it also violates the Liberty of Speech Clause of the California Constitution, the state'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 the constitution," Opsahl maintained.

While journalists have privileges under the First Amendment, they are qualified privileges, noted Paul Levy, an attorney with Public Citizen, a consumer action group in Washington, D.C. "If there's a strong case to be made 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 told TechNewsWorld.

Chilling Effect

But before that interest must be yielded, a plaintiff must exhaust all other avenues of discovery to obtain the information held by the reporter, Opsahl explained. "We don't believe that they [Apple] have done an exhaustive search," he said.

"You worry about situations in which the first place that the plaintiff goes is to question the journalists because of the chilling effect that has on people's willingness to talk to the media," Levy added.

That chilling effect would especially be felt by scribes reporting on large companies, according to Dan Kennedy, the media columnist for the Boston Phoenix. "Publishing secrets about a company that everyone is as interested in as Apple is obviously something anyone would want to do," he told TechNewsWorld. "Now suddenly it looks like a much more dangerous thing to do."

Plame Parallels

He saw parallels between the Apple case and the Valerie Plame affair. Plame was named as a CIA operative by a news columnist; the leak of her identity was a violation of federal law. An investigation into who leaked that information to the columnist is currently being conducted by federal authorities.

In the Plame case, Kennedy noted, the Bush Administration couldn't finger the leak, so it adopted a strategy of "let's threaten all the journalists who wrote 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 the recipients of those leaks," Kennedy explained.

And the fact that those recipients are bloggers might also have influenced Apple's decision to shake them down for information, he added. "It's a lot easier to go after some kid with a blog than it is to go after a major media organization," he said.

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