Apple Loses Bid to Unmask Bloggers' Sources

A California appeals court has smacked down Apple's legal assault on bloggers and their sources, finding that the company's efforts to subpoena e-mail received by the publishers of Apple Insider and http://PowerPage.org runs contrary to federal law, California's reporter's shield law, and the state Constitution.

The Sixth District Court of Appeals on Friday roundly rejected (.pdf) Apple's argument that the bloggers weren't acting as journalists when they posted internal document about future Apple products. "We decline the implicit invitation to embroil ourselves in questions of what constitutes 'legitimate journalis(m).' The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here," the court wrote.

"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."

Apple had also claimed that the inside information "could have been obtained only through a breach of an Apple confidentiality agreement." The company argued that even if the bloggers were journalists, there's no protection for anonymous sources who have committed the crime of trade secret theft.

Here, too, the three-judge panel disagreed. "Apple has failed to demonstrate that it cannot identify the sources of the challenged information by means other than compelling petitioners to disclose unpublished information. This fact weighs heavily against disclosure, and on this record is dispositive." Additionally:

Apple alludes repeatedly to the notion that the publication of trade secrets cannot be found to serve the public interest because of the policy embodied in trade secret law itself, which presupposes that trade secrets possess social utility justifying special protections against wrongful disclosure. This is, of course, a false dichotomy. It is true that trade secrets law reflects a judgment that providing legal protections for commercial secrets may provide a net public benefit. But the Legislature’s general recognition of a property-like right in such information cannot blind courts to the more fundamental judgment, embodied in the state and federal guarantees of expressional freedom, that free and open disclosure of ideas and information serves the public good.

The case began in late 2004, when Apple Insider and PowerPage published drawings, artists' sketches, pricing and release dates for a planned product codenamed "Asteriod." Incensed, Apple lawyers sued the anonymous sources of the information as Doe defendants, and promptly issued subpoenas to the bloggers' ISPs seeking any e-mail pertaining to Asteroid, in a bid to unmask the leakers.

That prompted the EFF to intervene. The trial judge sided with Apple, and EFF appealed.

The ruling is a significant victory for journalists, and, I'd argue, the public. It's also good for ISPs, says EFF lawyer Kurt Opsahl, because the court found that the federal Stored Communications Act protects private e-mail from civil subpoenas.

"That is going to be very useful to internet service providers in the Valley, who now know that they don't have to provide the contents of e-mails when they receive subpoenas in civil litigation," Opsahl told me. "It is a significant victory for ISPs."

A separate case against Apple fan site Think Secret is still pending in a lower court.