Bloggers Can’t Shield Sources

UPDATED: Lawyers await word on whether a judge will change his mind regarding a
preliminary ruling that forces three bloggers to reveal their sources for
upcoming Apple technology published on their sites.

A hearing was held Friday in the Santa Clara Superior Court by Judge James
Kleinberg, with lawyers representing Apple and three Web sites: ThinkSecret,
AppleInsider and PowerPage.

Kleinberg issued a preliminary ruling Thursday
that upholds Apple’s subpoena against the three publishers to disclose the
identities of a number of “John Does” who passed along what Apple calls its
trade secrets.

The subpoenas surround a lawsuit filed by Apple in December 2004 against several unnamed individuals, called “John Does,” who allegedly released information about an upcoming product that goes by the code name Asteroid, a FireWire audio interface for Apple’s music editing software product GarageBand.

Apple lawyers maintain that the California civil code protects their trade secrets, as the company takes steps to ensure the information remains confidential.

The preliminary ruling is a blow to the blogging, or “citizen journalist,” community, which, as it stands, does not possess the deep legal resources to fight over protecting identities, compared to traditional media organizations.

According to EFF officials, the judge seemed to indicate the bloggers should be classified as journalists, but the question remained whether the reporter’s attempt to protect sources, asserting First Amendment rights and the California constitution, applied in this case, as well as whether Apple exhausted all available options before issuing subpoenas against the blog site owners. According to the organization, outside of the three bloggers and the ISP of one of the bloggers, Apple hasn’t sought information from other sources.

“We don’t believe Apples has exhausted all methods of getting this
information,” Kevin Bankston, EFF staff attorney, said in a statement.
“Apple hasn’t subpoenaed any of its employees the way it subpoenaed our
clients’ ISP. Nor has it deposed any of its employees in the case.”

Terry Gross, the lawyer representing Nick Ciarelli, owner of ThinkSecret,
said he doesn’t know when the judge will issue an order regarding his
preliminary ruling, but expects the losing side, depending on which party it
favors, will file an appeal.

“I would hope that he changes his mind,” he said.

Apple officials were not available for comment at press time.

Updates prior version to clarify reference to First Amendment.