EFF to Apple: Too Much Too Soon
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The Electronic Frontier Foundation said Apple acted too quickly in subpoenaing journalists and bloggers accused of stealing trade secrets.
Court documents in the case were unsealed last week. EFF said they reveal Apple tried to subpoena two reporters' anonymous sources without first conducting a thorough internal investigation.
EFF said this is a crucial issue in the case, which will be heard by a California appeals court. The First Amendment and the California Constitution require that Apple exhaust all other alternatives before trying to subpoena journalists.
"The First Amendment requires that compelled disclosure from journalists be a last resort," said EFF Staff Attorney Kurt Opsahl in a statement. "Apple must first investigate its own house before seeking to disturb the freedom of the press."
Apple also claimed that its internal investigation was itself a trade secret that needed to be sealed from opposing counsel, but the EFF and its co-counsel, Thomas Moore III and Richard Wiebe, argued successfully to the court that it be unsealed.
Apple spokesperson Steve Dowling would not comment specifically on EFF's claims, but told internetnews.com:
"Apple 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. Apple's DNA is innovation, and the protection of our trade secrets is crucial to our success."
The EFF and co-counsel are representing journalists with the online news sites AppleInsider.com and PowerPage.org. After the sites printed articles about "Asteroid," rumored to be a much-anticipated FireWire audio interface for its GarageBand music program, Apple claimed violation of trade secret law. In December, the company sued several unknown parties, known as "Does," who allegedly leaked information about "Asteroid" to the journalists.
In its claim of a less than thorough internal investigation, EFF said Apple did not obtain sworn statements from employees who had access to the leaked "Asteroid" specs or search individual computer workstations, or investigate the possibility that information about Asteroid was transmitted by means other than e-mail.
The case is noteworthy in that it was the first in which a court heard arguments that online reporters' confidential sources and unpublished materials are protected by both the reporter's shield in the California constitution and the reporter's privilege under the federal First Amendment.
Judge James Kleinberg said in his initial ruling back in March that "Defining what is a 'journalist' has become more complicated as the variety of media has expanded. But even if the [bloggers] are journalists, this is not the equivalent of a free pass. The journalist's privilege is not absolute."