Sunday, May 28, 2006


California court extends First Amendment protection to blogger in Apple case


General news story from the San Jose Mercury News:

A site which links to PDF source documents from the court case:


An earlier story (from April 27) by USA Today columns Andrew Kantor
which considers the issue: What is journalism in the Apple case context:


Bloggers can shield sources, court rules
In setback for Apple, Internet journalists are protected by law

Ellen Lee
San Francisco Chronicle Staff Writer
Saturday, May 27, 2006

In a decision that could set the tone for journalism in the digital age, a California appeals court ruled Friday that bloggers, like traditional reporters, have the right to keep their sources confidential.

A panel of three judges said in a 69-page decision that a group of bloggers did not have to divulge their sources to Cupertino's Apple Computer Inc., contending that the same laws that protect traditional journalists, the First Amendment and California's Shield Law, also apply to bloggers.

Siding with the Electronic Frontier Foundation, a high-tech legal group that had filed the appeal, the judges said that Apple could not force the bloggers to reveal the identity of the person -- presumably an Apple employee -- who had leaked details about a digital-music-related project code-named "Asteroid" to a number of bloggers. The details of the product release were published on several Web logs, Internet sites commonly referred to as blogs, including Jason O'Grady's PowerPage, which reports on Apple news.

"This was a huge win for the First Amendment and for journalists who publish online," said Lauren Gelman, associate director for Stanford's Center for Internet and Society, who filed a brief supporting the Electronic Frontier Foundation. "The court recognized that in the modern era, one way journalists publish information is through the Internet."

The decision by the state Court of Appeal in San Jose, which reverses a ruling by the Santa Clara County Superior Court, speaks to changes in the way news is gathered and published. Anyone with a computer and an Internet connection can now be a reporter. It also means that information, not limited by region or resources, can reach far and wide via the Web.In their ruling, the judges said the online news sites should be treated as newspapers, television and radio broadcasts are. O'Grady and the other bloggers, they contended, were acting as traditional reporters and editors do: developing sources, collecting information and publishing it, albeit on the Web.

"The shield law is intended to protect the gathering and dissemination of news, and that is what the petitioners did here," the judges said in the ruling.

Apple had initially argued that the bloggers shouldn't be considered journalists. The maker of the popular iPod digital music player, along with other Bay Area high-tech companies such as Intel Corp. and Genentech, also were concerned that the Internet had made it easy for the bloggers to make their trade secrets public, potentially giving their competitors an edge and harming their business.

But Kurt Opsahl, an attorney for the Electronic Frontier Foundation, said the companies can still protect their businesses but cannot use reporters as their first resort to expose a leak."The court upheld strong protections for the free flow of information to the press and from the press to the public," Opsahl said.

In addition, the judges ruled that, in the digital age, bloggers' e-mails should also be protected, just like a telephone call or written document. Apple had not sued the bloggers directly but had tried to subpoena their Internet service provider, which had access to the e-mails sent between the confidential source and the bloggers. The Electronic Frontier Foundation, representing the bloggers, intervened.

In the end, the judges made little distinction between online journalists and traditional journalists."Does Walter Cronkite stop being a journalist if he blogs for the Huffington Post (an online news site)?" Opsahl said. "What makes a journalist a journalist is not the format. If you're engaged in journalism, you're a journalist. You have to look beyond the medium selected."

George Riley, an outside attorney representing Apple, declined to comment. Apple did not return calls for comment. It was not clear whether the company would appeal.

E-mail Ellen Lee at


Published: May 27, 2006

SAN FRANCISCO, May 26 -- A California appeals court ruled Friday that online reporters are protected by the same confidentiality laws that protect traditional journalists, striking a blow to efforts by Apple Computer to identify people who leaked confidential company data.

The three-judge panel in San Jose overturned a trial court's ruling last year that to protect its trade secrets, Apple was entitled to know the source of leaked data published online. The appeals court also ruled that a subpoena issued by Apple to obtain electronic communications and materials from an Internet service provider was unenforceable.

In its ruling, the appeals court said online and offline journalists are equally protected under the First Amendment. "Wecan think of no workable test or principle that would distinguish 'legitimate' from 'illegitimate' news," the opinion states. "Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment." The ruling states that Web sites are covered by California's shield law protecting the confidentiality of journalists' sources.

Apple had argued that Web sites publishing reports about Apple were not engaged in legitimate news gathering but rather were misappropriating trade secrets and violating copyrights. But in its ruling on Friday, the panel disagreed. "Beyond casting aspersions on the legitimacy of petitioners' enterprise, Apple offers no cogent reason to conclude that they fall outside the shield law's protection," the ruling states.

If upheld, the ruling could have far-reaching impact in California courts on other writers who publish electronically, including bloggers who regularly publish news and opinion online without the backing of a mainstream news operation. "This ruling will probably prove instructive to other online writers," said Kurt Opsahl, a lawyer with the Electronic Frontier Foundation, a civil liberties organization, who argued the case in front of the appeals court last month. "It says that what makes a journalist is not the format but the function."

Apple declined to comment Friday on the ruling or on a possible appeal.

Apple's close guarding of company secrets, particularly unannounced products, is legendary. Friday's ruling arose from a suit filed in December 2004 against the unknown individuals who Apple said had leaked information about unannounced Apple products to two sites devoted to news of the company, AppleInsider and Both sites published reports in November 2004 describing secret Apple projects, including one known at Apple by the code name Asteroid. Apple did not sue the sites directly but sought to subpoena their e-mail records. As part of the investigation, Apple subpoenaed the e-mail records of Nfox, the company that provided Internet service to Jason D. O'Grady, the publisher of PowerPage. About the same time, Apple filed a trade-secret suit against Think Secret, another online news site that the company accused of publishing confidential data about its future products. That case is pending.

Friday's ruling is also significant because it addresses whether private e-mail is protected from subpoenas. "The court correctly found that under federal law, civil litigants can't subpoena your stored e-mail from your service," said Kevin Bankston, a lawyer for the Electronic Frontier Foundation.


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