Judge Rules for Apple in ID Case

By Jon Newton 3/12/05

A California judge has effectively destroyed one of the most valuable tools in free online journalism - investigative reporting.

ISP Nfox can be forced to name PowerPage and AppleInsider confidential sources to Apple, Santa Clara County Superior Court Judge James Kleinberg has ruled.

“The court rejected a request for an order to protect the confidentiality of these sources and other unpublished materials,” says the EFF (Electronic Frontier Foundation) which, with Thomas Moore III and Richard Wiebe, was acting for both sites.

Jon Newton

Defendants’ counsel say they plan to ask the California Appellate Court to intervene.

This was the landmark case in which a court was asked to decide whether or not online reporters' confidential sources and unpublished materials are protected by the reporters' shield in the California constitution, and reporters' privilege under the First Amendment.

“But the court did not restrict its ruling to online journalists, instead deciding that all journalists could be required to reveal confidential sources when a claim of trade secret is raised,” says the EFF, going on:

“Apple is suing several unnamed individuals, called 'Does,' who allegedly leaked information about an upcoming product code-named 'Asteroid.' Apple has subpoenaed Nfox, the ISP for PowerPage.com publisher Jason O'Grady, demanding that the ISP turn over the communications and unpublished materials O'Grady obtained while he was gathering information for his articles about ‘Asteroid’."

Apple has also been granted permission to issue subpoenas directly to EFF clients PowerPage and AppleInsider for similar information, but these haven’t yet been issued and weren’t ruled on today.

“Apple Computer's disgusting attack on three online journalism sites, in a witch hunt to find out who (if anyone) inside the company leaked information about allegedly upcoming products, has taken a nasty turn,” wrote Dan Gillmor recently.

“Too bad it's not surprising - and journalists of all kinds should be paying attention. A judge in California has decided that the sites don't qualify as ‘journalism’ (AP) under state law and/or the First Amendment.

“By his bizarre and dangerous standard, I apparently stopped being a journalist the day I left my newspaper job after a quarter-century of writing for newspapers.”

Apple is also trying to sue Think Secret publisher Nick Ciarelli for revealing details of the Mac mini before Steve & Co were ready.

Think Secret, PowerPage and AppleInsider have given much free (but nonetheless priceless) PR to Apple.

Gizmodo put it in a nut-shell when news of the suit broke, writing:

"Our take is pretty simple: fuck ‘em all - every last company.

"There’s absolutely no reason for a website to pull product leaks just because a company threatens them - in fact, that means you’re probably sitting on a good story. I’ve done it a total of one time, for Creative, and got so burned I learned my lesson."

Apple may think it's won, but its victory is likely to be hollow.

The ruling applies only to American reporters.

Jon Newton is the editor of p2pnet.net and is a regular contributer to MP3 Newswire. Jon's site is devoted to the politics of digital music and his insights as well as those of his co-writers can be read there. We urge you to explore it.


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