A California judge sidestepped the issue of whether bloggers are journalists in ruling that Apple Computer can subpoena the source of leaks about an unreleased product.
A California Superior Court judge ruled yesterday that Apple Computer is entitled to subpoena the name and e-mail of the confidential source that leaked information about an unreleased product.
The case has garnered national attention because it raises the issue of whether bloggers are journalists who are entitled to protections from disclosing the names of confidential sources.
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Santa Clara County Superior Court Judge James Kleinberg did not address what he described as the “complicated” question of who is a journalist. Rather, he focused on the narrow issue of whether Apple’s trade secrets had been stolen and whether the Cupertino, Calif., computer maker is entitled to know the identity of the source that leaked the confidential documents.
Apple sought subpoenas to identify the source of information about a new audio interface for its GarageBand music application — product code-named “Asteroid” — which had been published in December by two Apple-focused Web sites, AppleInsider and PowerPage.
The court granted Apple’s request to obtain e-mails and other documents from Nfox, the e-mail service provider for PowerPage. Nfox did not object to the subpoena.
The owners of the Web sites stepped in to fight the subpoenas on free-speech grounds. They argued that, as journalists, the confidentiality of their sources should be protected under California’s shield law.
Kleinberg wrote that journalistic privilege “is not absolute.” Reporters and their sources do not have “a license to violate criminal laws,” he wrote.
Kleinberg also wrote the information was like any physical property that had been stolen.
“The right to keep and maintain proprietary information as such is a right which the California Legislature and the courts have long affirmed and which is essential to the future of technology and innovation in general,” Kleinberg wrote. “The court sees no reason to abandon that right, even if it were to assume … (these) are ‘journalists.’ ”
Kurt Opsahl, an attorney for the Electronic Frontier Foundation, the San Francisco advocacy group representing PowerPage and AppleInsider, said he plans to appeal the ruling to the California Court of Appeal.
“We’re disappointed that the trial court has created a wholesale exception to the journalist privilege when the published information is alleged to be a trade secret,” Opsahl said. “This could have ramifications for journalists of all stripes. Anyone who is reporting on companies is threatened by this ruling.”‘
An Apple spokesman reiterated a portion of the judge’s ruling, noting, “There is no license conferred on anyone to violate valid criminal laws.”
Yesterday’s ruling does not impact a civil suit Apple brought against ThinkSecret.com, in which it seeks damages for alleged misappropriation of trade secrets.
ThinkSecret has asked the court to dismiss Apple’s case under California’s Anti-SLAPP law.
The law is designed to protect individuals who are exercising their free-speech rights from frivolous lawsuits designed to silence them, called Strategic Lawsuits Against Public Participation.