A California state appeals court on Friday ruled in favor of the Electronic Frontier Foundation’s (EFF’s) appeal on behalf of three bloggers being sued by Apple Computer. The case challenged whether or not online journalists have the same right to protect confidential sources as those whose work appears in print publications.
The ruling overturned a lower court decision in March that bloggers do not have the same confidentiality rights as print reporters. Apple has not yet publicly commented on the decision.
The whole mess began in December 2004, when Apple filed suit against 20 unnamed and presumably unknown individuals, referred to in the court filing as “Does,” for leaking confidential materials on an Apple product under development to several Web publications, including the Web sites AppleInsider and PowerPage.
As part of its investigation, Apple subpoenaed Nfox — PowerPage’s email service provider — for communications and unpublished materials obtained by PowerPage publisher Jason O’Grady. A Santa Clara trial court upheld the subpoena in March of 2005 and the EFF appealed.
In a 69-page ruling, the 6th District Court of Appeal ruled that bloggers and webmasters are no different in their protections than a reporter and editor for a newspaper. “We can think of no workable test or principle that would distinguish ‘legitimate’ from ‘illegitimate’ news,” the judges wrote.
“Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace,” they wrote.
“Today’s decision is a victory for the rights of journalists, whether online or offline, and for the public at large,” said EFF Staff Attorney Kurt Opsahl in a statement. Opsahl argued the case before the appeals court last month. “The court has upheld the strong protections for the free flow of information to the press, and from the press to the public.”
Apple argued its right to trade secrets trumped Constitutional rights, and it had
exhausted other sources to determine the source of the information, even
though Apple hadn’t deposed employees who were in a position to know, Kevin
Bankston, a staff attorney for the EFF told internetnews.com. The
lower court decision agreed, and said Apple’s trade secrets rights would
trump any journalist’s rights to source confidentiality.
Bankston said the ruling is a win
for anyone who uses email. “A lot of people will hear about this decision
and think it doesn’t affect them since they are not journalists, but it has
a broader impact because of the number of email providers, particularly the
number based in this district,” he said.
The court read Federal privacy law to forbid civil litigants like Apple
from subpoenaing an individual’s e-mail from e-mail providers. Instead, the court
said civil litigants must subpoena you directly, and if you are a
journalist, you can assert your rights of confidential sources.
“So they
have to subpoena you rather than doing an end run around your rights and
going straight to your e-mail provider,” said Bankston.
If Apple chooses to appeal, the case goes to the state Supreme Court.
Thus far, the sources for the original story have not been revealed, “and
hopefully based on this decision they never will,” said Bankston.
