Last April I wrote about the case of Apple versus blogger Jason D. O’Grady. O’Grady posted a series of stories in October 2004 about an upcoming Apple product in development. Apple decided to sue him and demanded he revealed his sources. This prompted the Electronic Frontier Foundation (EFF) to step in, arguing that the anonymity of his sources are protected by the same laws that protect sources who leak information to journalists. In other words: Bloggers may not be journalists, but they are protected as journalists. Well, this Friday the California court ruled in favor of the petition filed by the EFF. As Ars Technica reports: (…)The ruling concludes that trade secrets do not categorically transcend freedom of the press, that there is no relevant legal distinction between journalistic blogging and journalism with regards to the shield law, and that Apple’s attempt to subpoena the e-mail service provider of one of the sites was a violation of the federal Stored Communications Act.(…) I think this is a good and critical decision for the development of the Internet and Internet journalism. What is also interesting is the way the judge was looking at this case and how he came to this conclusion:
“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.”
So the Court ruled that O’grady is protected by something called the Shield Law in California. As Ars Technica explains:
In general, shield laws are designed to prevent journalists from being held in contempt of court for refusing to disclose a source. The California shield law specifically offers this protection to any “publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication or by a press association or wire service, or any person who has been so connected or so employed.”
The law states that individuals that are eligible for protection cannot be compelled “to disclose, in any proceeding as defined in ยง 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or any other periodical publication or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.” Section b of the California shield law extends the same protections to radio and television news reporters.
The California shield law only has one major exception: shield protection is not applicable when the testimony of a journalist is required in order to ensure that a defendant in a criminal case receives the constitutional right to a fair trial.
In 2000, the California shield law was expanded to add some minor additional protections in order to prevent law enforcement agencies from exploiting loopholes in the legislation. When Assemblywoman Carol Midgen proposed the expansion, she also issued a legislative report that articulated with great clarity the importance of the shield law. The report contained the following tremendously cogent summary:
Journalists are professional investigators. The main purpose of the shield law is to prevent government from making journalists its investigative agents and to prevent a journalist who is trying to cover the story from becoming part of the story (which makes them wholly unable to cover it). Increasingly, when a criminal case is newsworthy, the first thing (not the last thing) defense attorneys do is subpoena any journalist who has covered the story.
In this case, Apple v. Does, applicability of the shield law is an important aspect. In a way, Apple is attempting to utilize the writers in question as its own investigators, trying to force them to reveal the source of Apple’s leak so that the company wont have to fully pursue an internal investigation. Apple believes that it has the authority to force compliance with its demands in part because the company’s legal representatives are convinced that bloggers are not entitled to shield law protection. Although the superior court sided with Apple, the appellate court sided with the bloggers.
To cut a long story short: I agree with the courts ruling in this case. And I would recomment reading the whole article at Ars Technica by Ryan Paul because he really pics out the interesting parts in my opinion.
Professional writers or not, I think that the freedom of speech (in this case by electronic means, by way of ‘blogging’) outweighs the rights of governments or companies. Or, once again as the Judge put it:
This case involves not a purely private theft of secrets for venal advantage, but a journalistic disclosure to, in the trial court’s words, “an interested public.” In such a setting, whatever is given to trade secrets law is taken away from the freedom of speech. In the abstract, at least, it seems plain that where both cannot be accommodated, it is the statutory quasi-property right that must give way, not the deeply rooted constitutional right to share and acquire information.
Hear, hear!