Bloggers Not Protected by Constitution, says Apple

Apple Asks Judge to Order Web Sites to Name Sources (NYT rss)

A state judge in California heard arguments on Friday in a lawsuit brought by Apple Computer to force three Web site publishers to reveal the names of confidential sources who disclosed to them Apple’s plans for future products. The outcome of the lawsuit, which was filed in December, could have far-reaching ramifications for the ability of bloggers to maintain the confidentiality of unnamed sources, which news gatherers often depend on for information.

Judge James Kleinberg of the Santa Clara County Superior Court in San Jose, Calif., told the lawyers in the case late Thursday that he was leaning toward permitting Apple to issue subpoenas to the three publishers, Powerpage.org, Apple Insider and Think Secret. He is expected to issue a formal ruling as early as next week.

The Electronic Frontier Foundation, a civil liberties group that filed a motion last month to block the subpoenas, argued in court on Friday that online publishers have the same legal protections as traditional journalists, who are shielded under state law from being forced to divulge the names of confidential sources. “If this ruling goes in favor of Apple, it will have a chilling effect on the use of confidential sources,” said Kurt Opsahl, a staff lawyer with the foundation, which is based in San Francisco. Once the judge rules, the defendants will have five days to decide whether to appeal. After that period, Apple can issue the subpoenas.

Bloggers not protected by Constitution, says Apple (Earth Times)

A tentative ruling yesterday by Superior Court judge James Kleinberg is likely to have serious implications for the online publishing industry. In a preliminary ruling on a case filed by Apple Computer against three website publishers, the judge said Apple can force the three website publishers to surrender the names of their sources who disclosed confidential information about the company̢۪s upcoming products.

Apple’s attorney George Riley, argued earlier in the trial that journalists, whether or not belonging to traditional media like press and broadcast were never entitled to the leaked information. Company trade secrets are vital to the survival of any company, and the lifeblood of the industry, he had said. “That leaked information belongs to Apple” he insisted, “and publishing it in a public forum would jeopardize Apple’s business as competitors would jump at the chance to copy the product ‘Asteroid’ and release it in the market before Apple.”

Apple’s argument was based on the premise that such a disclosure about an unreleased product was a ‘trade secret violation’. Apple demanded to know the source of their information for which it got subpoenas against the three seeking all documents related to the product and information about anyone who might have knowledge of the postings about the product. ‘Asteroid’ is Apple’s upcoming product, the details of which were published in the three websites. Apple Insider and PowerPage, two of the three website publishers subpoenaed by Apple in December, are being represented by the Electronic Frontier Foundation, a San Francisco digital rights group. The third publisher -Think Secret were subpoenaed by Apple in January. Apple Insider and PowerPage are two sites that focus exclusively on Apple products.

By his preliminary ruling, judge Kleinberg had refused to extend to the Web sites the same protection that shields journalists from revealing their unidentified sources or surrendering unpublished material.

Kleinberg is clearly wrong on that issue. Whether a journalist of any stripe has the right to shield sources’ illegal conduct is another question entirely, however.

FILED UNDER: Blogosphere, Law and the Courts, Media, Science & Technology
James Joyner
About James Joyner
James Joyner is Professor and Department Head of Security Studies at Marine Corps University's Command and Staff College and a nonresident senior fellow at the Scowcroft Center for Strategy and Security at the Atlantic Council. He's a former Army officer and Desert Storm vet. Views expressed here are his own. Follow James on Twitter @DrJJoyner.

Comments

  1. Dave Schuler says:

    Since there’s no provision under the U. S. Constitution that shields journalists from revealing their sources we must be talking about the California State Constitution:

    Section 2(b) A 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 employed, shall not be adjudged in contempt by a judicial, legislative, or administrative body, or any other body having the power to issue subpoenas, for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper, magazine or 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.

    Nor shall a radio or television news reporter or other person connected with or employed by a radio or television station, or any person who has been so connected or employed, be so adjudged in contempt for refusing to disclose the source of any information procured while so connected or employed for news or news commentary purposes on radio or television, or for refusing to disclose any unpublished information obtained or prepared in gathering, receiving or processing of information for communication to the public.

    As used in this subdivision, “unpublished information” includes information not disseminated to the public by the person from whom disclosure is sought, whether or not related information has been disseminated and includes, but is not limited to, all notes, outtakes, photographs, tapes or other data of whatever sort not itself disseminated to the public through a medium of communication, whether or not published information based upon or related to such material has been disseminated.

    Are blogs “periodical publications”? It seems to me that an argument could be made that they are. But another approach for bloggers to take would be to band together in a “press association”. Since there doesn’t appear to be any legal definition of a press association (or any mechanism for credentialing them) that would seem to be easy enough. Alternatively, the credentialing scheme suggested by a couple of radio stations would seem to do the trick.

  2. bryan says:

    Actually, the argument about shielding confidential sources has been in the news quite a bit lately, with the two NYT reporters, and the case in the Northeast (Delaware I believe).

    The argument that journalists *HAVE* such a right to shield confidential sources without punishment is something that is hardly agreed upon. California (as usual) is farther than the rest of the country on this.

  3. James Joyner says:

    Dave and Bryan: Right. The story is being framed in several places as a blogs vs. “regular” media issue, since that’s how the judge ruled. He’s likely to be overruled, methinks. But journalists’ ability to shield sources, period, has never been absolute.

  4. Losing Faith says:

    Does it matter that the info is illegal to publish? IS it illegal to publish it? I mean, it would be a trade secret violation regardless of them being given press status.

  5. James Joyner says:

    So far as I know, it’s not illegal to publish much of anything aside from kiddie porn. The Pentagon Papers case established that it’s permissible to publish even classified info.

  6. Beldar says:

    There’s no First Amendment right for anyone — journalist or non-journalist, whatever the line is between them — to refuse to disclose confidential sources. That’s the authoritative current position of the U.S. Supreme Court in the Branzburg decision, unless and until the U.S. Supreme Court overturns it or there’s an amendment to the U.S. Constitution. State courts may not substitute their own interpretations of the federal constitution for those of the U.S. Supreme Court.

    But the First Amendment isn’t the only possible source of such a privilege. Many states have enacted such privileges by statute; or they could do so through explicit provisions in their state constitutions. State courts could also “imply” such a privilege purely under state law (e.g., under state constitutions’ counterparts to the federal First Amendment).

    Completely apart from constitutional or statutory bases for such a privilege, courts have sometimes created “common law” shield privileges. Under federal common law, we’ve recently seen a three-judge panel on the DC Circuit unanimously refuse to do apply such a privilege, although the three judges split three ways (one saying there is no privilege, one saying there is, the other refusing to speculate) while only agreeing that if a common-law privilege exists, it is conditional at best, and in that case a sufficient showing had been made to overcome it. Shortly afterwards, a federal district judge in New York reached the contrary conclusion, again purportedly under “federal common law” (or more specifically, rule-making authority for privileges delegated to the federal courts by Congressional statute). Both cases involved assertions of privilege made by Judith Miller of the New York Times.

    The definitional problems — e.g., do bloggers qualify as “journalists” or blogs as “periodicals,” if those are the terms used to describe those entitled to assert the privilege? — are among the reasons that cautious courts have refused to “imply” such a common-law privilege. They’re deferring to the tinkering powers of the legislatures, who might try to draw principled — but not constitutionally mandated — definitions as to who qualifies and who doesn’t. If there’s no constitutional basis for the privilege, it’s possible that a state legislature could draw boundaries that would exclude bloggers while protecting more traditional “journalists.”

    I happen to think that would be unwise. But that doesn’t mean it would be illegal. Were I a legislator, I’d probably vote against any such privilege, in part because of the definitional problems. Were I a judge reviewing a legislative action in passing one, however, I might reluctantly be obliged to uphold it.