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EFF Files Appeal In Apple Suit

Staff Writer
Published: 2005-03-23

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Today the Electronic Frontier Foundation ( EFF ) filed an appeal in a case that has broad implications for the rights of reporters to protect the confidentiality of their sources.

Last week, a California Superior Court judge ruled that an online journalist's Internet service provider ( ISP ) can be required to reveal the identities of the reporter's confidential sources to Apple Computer, Inc. The court rejected EFF's request for an order to protect the identities of sources for the online news sites AppleInsider and PowerPage.

This case was the first in which a court heard arguments that online reporters' confidential sources and unpublished materials are protected by both the reporter's shield in the California constitution and the reporter's privilege under the federal First Amendment. But the court did not restrict its ruling to online journalists, instead holding that all journalists could be required to reveal confidential sources when a claim of trade secret is raised.

In its request for an appeal, EFF argues that the First Amendment cannot be so easily waived. Many important news leaks, such as those revealing the dangers of cigarette smoking, can be claimed to be trade secrets by the companies seeking to stop them. Apple must also demonstrate that it has done an exhaustive search elsewhere for the information it seeks before targeting journalists with court orders. There is no evidence that Apple has done such an exhaustive search.

"The California courts have a long history of supporting and protecting the freedom of the press," said EFF Staff Attorney Kurt Opsahl. "The Court of Appeal will now get the opportunity to correct a ruling that endangers all journalists."

"The Superior Court's ruling exalted statutory trade secret protection over constitutional rights, misapplied the test for when the constitutional reporter's privilege may be overcome, and ignored the Stored Communications Act altogether," said Kevin Bankston, EFF staff attorney and Bruce J. Ennis Fellow. "There are strong protections for email privacy under federal law, especially when that mail is held by an ISP. Every email service provider should be concerned about correcting this dangerous precedent."

The case is the result of Apple suing several unnamed individuals, called "Does," who allegedly leaked information about an upcoming product code-named "Asteroid." Apple 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."

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