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Internet Journalists Everywhere Win Victory in Apple Case

The Electronic Frontier Foundation (EFF) won a victory in court Friday for U.S.-based Internet journalists when an appeals court ruled in favor of the petition filed by the EFF on behalf of three online journalists


Reno, NV -- (ReleaseWire) -- 05/31/2006 --Reno, NV - The Electronic Frontier Foundation (EFF) won a victory in court Friday for U.S.-based Internet journalists when an appeals court ruled in favor of the petition filed by the EFF on behalf of three online journalists, holding that the online journalists have the same right to protect the confidentiality of their sources as offline reporters do.

It all started in 2004, when Apple filed a lawsuit in Santa Clara county California against unnamed individuals who allegedly leaked information about new Apple products to several online news sites, including AppleInsider and PowerPage. The articles at issue concerned a FireWire audio interface for GarageBand, codenamed "Asteroid" or "Q7." In addition, Apple filed a separate trade secret suit against Think Secret on January 4, 2004.

At the time the suit was filed, first amendment rights pundits were all glued to the case. Many thought that if the court ruled against the online journalists who were protecting their sources it would set back journalism and set a precedence once and for all that Internet journalists did not have the same writes as print. But the judge hearing the case did not want to be in the middle of a Constitutional fight. So instead of addressing the First Amendment issue, he skirted it completely saying the defendants misappropriated Apple's trade secrets and were ordered to turn over the information.

Apple sued the email provider, Nfox, to get them to turn over email records of the editors. The EFF stepped up to the plate in February, 2005, filing a motion for a protective order from the Superior Court that would invalidate the subpoenas to email provider Nfox as well as prohibit future subpoenas to the online journalists or their service providers.

The EFF argued that Apple's discovery of the online journalists' confidential sources would violate The Reporter's Shield embodied in the California Constitution, the First Amendment's Qualified Reporter's Privilege, and The federal Stored Communications Act, which forbids communication service providers from disclosing the content of communications in response to a civil subpoena.

On March 11, 2005, the Santa Clara court issued a written order denying the motion, but delayed the effect of its order until March 22, 2005, so the journalists could appeal the decision. And appeal the did.

The crux of the issue of whether or not these Internet publishers were journalists fell to the expert opinion of Professor Thomas Goldstein, former Dean of the Columbia University Graduate School of Journalism and of the University of California at Berkeley Graduate School of Journalism.

Prof. Goldstein said that PowerPage and Apple Insider are online publications that are the electronic equivalent of print publications like newspapers or magazines and therefore entitled to the same privileges and protection afforded any journalist under the California Reporters Shield.

Originally enacted as Section 1070 of the Evidence Code, the people of California elevated the California reporter's shield to the California Constitution in 1980, illustrating the voter's "intention to favor the interests of the press in confidentiality over the general and fundamental interest of the state in having civil actions determined upon a full development of material facts." The California Supreme Court has held that the California reporter's shield provides "absolute protection to nonparty journalists in civil litigation from being compelled to disclose unpublished information." It may be "overcome only by a countervailing federal constitutional right."

The California Supreme Court has found that the California and federal constitutions provide journalists with "a qualified privilege to withhold disclosure of the identity of confidential sources and of unpublished information supplied by such sources."

This case is not about whether Apple has the right to protect its alleged trade secrets. It is only about the means by which it can seek evidence to determine which, if any, person leaked information to the press, writes the EFF.

"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, who 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."

In their decision, the judges wrote: "We can think of no workable test or principle that would distinguish 'legitimate' from 'illegitimate' news. 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."

Now if only the Associated Press would give in to Internet journalism and permit Web publishers to join AP. Our editor has said that he has given up his attempts at trying to join after three years of being turned away. In his last attempt to join he was brassly told, "if you don't like it sue us." After today's ruling, he said, "maybe I will."