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RealTime IT News

Bloggers on The Front Lines

Thank you, ThinkSecret. Thank you, AppleInsider and PowerPage.

No, not for your interesting, juicy tidbits on your blogs and tip sheets about upcoming products and all things Apple and Mac. We do enjoy them though, as confounding as they can be to technology news sites that write about Apple.

No, not for when you may have slapped up any unchecked information that would arouse howls of derision about standards if it were published the same way in the so-called "mainstream" press (online or off).

Thank you for being journalists in the case involving Apple. Thanks for your work upholding the fundamental principle that journalists uphold: the ability to keep anonymous sources protected. And thank you for getting lawyers to help you cite the First Amendment in your quest to protect your sources.

We'll see if you ultimately break new ground in whether bloggers will help or hinder journalists that seek to protect their sources through shield laws.

You have a tough road after Friday, when a Santa Clara County Superior Court judge in California ruled that one of your ISPs can be required to turn over information about customers as part of Apple's complaint about leaked product information, presumably by one of its employees.

Judge James Kleinberg ruled that Nfox, the Internet provider for blogger Jason O'Grady, can be subpoenaed as part of Apple's complaint against individuals it says betrayed its trade secrets.

Granted, the judge's ruling was careful to note that, in setting aside bloggers' attempts to block Apple's subpoena, it was focusing on the narrow issue of discovery. He still sided with Apple about trade secrets as property to be protected from theft, namely under California's Uniform Trade Secret Act Civil Code.

For all the pooh-poohing the mainstream media has done over whether bloggers are (sniff) actually journalists (this writer included), you guys may end up actually testing, perhaps expanding, California's shield law. Or not, given California's law that protects trade secrets as property.

Plenty of courts, California's included, have held that trade secret laws apply to everyone, bloggers and journalists included.

Who knows, your case may serve to clarify the patchwork of state shield laws that followed the muddied 1972 Branzburg v. Hayes Supreme Court decision, which hinted at some kinds of protection for reporters on confidential sources, but left a lot of questions too.

After all, Justice Byron White, who wrote the opinion, said some protections for sources were needed in order to protect freedom of the press. But as media manuals point out, White could find no connection between news gathering and a reporter's reluctance to reveal sources.

As the Reporters Committee for Freedom of the Press notes on its Web site, reporters are facing contempt charges in a number of federal cases around the country, and Congress is taking its first serious look at a reporter's shield law in decades.

Already, the U.S. house has introduced a bill to create a federal shield law.

We'll see how the Electronic Frontier Foundation's appeal on your behalf goes in this case as well as Nick Ciarelli's Think Secrets case, which is similar. And whether it could expand the scope of shield laws to bloggers that practice reporting, or what most call journalism.

Granted, this isn't the Pentagon Papers case, in which the government claimed that national defense would be compromised if purloined information about Vietnam War planning was published. The New York Times argued a compelling and overriding national interest in the public's right to know. And won.

On the other hand, this isn't a criminal case either, which is where most of the case law about whether a person's right to a fair trial trumps a reporter's promise to shield the identity of a source whose information is relevant to the case.

But for all the bloggers that many in the media argue are not journalists at all, especially the ones that mostly write opinions, we have guys like you now fighting to protect a journalist's ability to protect sources. That ought to add some points to the debate.

As we and others have argued before: You're journalists when you act like journalists: gather information, conduct interviews, and protect sources.

Good luck, you journalists.

Erin Joyce is executive editor of internet.com's news channel



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