Apple’s Blogger Probe Appealed

A civil liberties group filed an appeal late Tuesday in order to prevent Apple
Computer from uncovering the sources of some online
news sites.

Lawyers with the Electronic Frontier Foundation (EFF) filed the
paperwork with the Santa Clara County Superior Court requesting that a
judge withdraw a subpoena granted to Apple. The Macintosh maker wants information from Nfox,
the Internet provider (ISP) for blogger Jason O’Grady, his site
PowerPage and Apple enthusiast site AppleInsider. Apple is suing several unnamed individuals, called “Does,” for allegedly leaking information
about an upcoming product code-named Asteroid.

Apple maintains the confidential information is stolen property and
that its right to review the communications and unpublished materials
falls under California’s Uniform Trade Secret Act Civil Code 3426 and
Penal Code 499c.

Apple executives were not immediately available for comment on the
case or the EFF’s motion.

Two weeks ago, Judge James Kleinberg ruled Nfox must reveal the
information despite objections that it violates protections generally
afforded to journalists to protect their sources. The case now goes to
the California Court of Appeal for review.

“The Court of Appeal will now get the opportunity to correct a ruling
that endangers all journalists,” EFF staff attorney Kurt Opsahl said in
a statement.

In its request, EFF claimed First Amendment protection from having to hand over the
information. Lawyers for the group said many
important news leaks, such as those revealing the dangers of cigarette
smoking, can be claimed to be trade secrets by the companies seeking to
stop them.

“The Superior Court’s ruling exalted statutory trade secret
protection over constitutional rights, misapplied the test for when the
constitutional reporter’s privilege may be overcome, and ignored the
Stored Communications Act altogether,” EFF attorney staff attorney Kevin
Bankston said in a statement. “There are strong protections for e-mail
privacy under federal law, especially when that mail is held by an ISP.
Every e-mail service provider should be concerned about correcting this
dangerous precedent.”

The appeal also points out that Apple needs to demonstrate that it
has done an exhaustive search elsewhere for the information it seeks
before targeting journalists with court orders. There is no evidence
that Apple has done such an exhaustive search, the EFF claimed in its
appeal.

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.

In his ruling earlier this month, Kleinberg didn’t dispute the fact
the bloggers claimed to be journalists, but instead said that all
journalists could be required to reveal confidential sources when a
claim of trade secret is raised.

“Defining what is a ‘journalist’ has become more complicated as the
variety
of media has expanded,” he wrote in his decision. “But even if the
[bloggers] are journalists, this is not the equivalent of a free pass.
The journalist’s privilege is not absolute.”

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