TMO Reports - Mac News Sites Fight Subpeonas; Ask Court to Block Source Search (UPDATE)

by , 3:15 AM EST, February 15th, 2005

Lawyers for news Web sites Apple Insider and PowerPage asked the California Superior court Monday to stop Apple from going after sources who leaked information about an unreleased product last year.

Attorneys for the Electronic Frontier Foundation (EFF), who are representing the two sites, filed a motion in Santa Clara Superior Court asking the court to squash Apple's complaint, which asks both sites to turn over any and all information on who leaked facts about an un-announced audio hardware product code named "Asteroid" or "Q97". "Asteriod" has since been identified as a still un-announced Apple FireWire audio interface for GarageBand.

EFF lawyers argued that the Web sites and their journalists are protected by the California Constitution, the California Evidence Code, and the First Amendment of the U.S. Constitution and that the case threatens the basic freedoms of the press. The subpoenas should not be permitted because Internet journalists deserve the full protection of traditional print and broadcast journalists, the brief said.

"The First Amendment protects the privacy rights of all speakers, reporters or not, who 'wish to promulgate their information and ideas in a public forum while keeping their identities secret,'" the filing read. "The Supreme Court has repeatedly upheld the First Amendment right to speak anonymously. While no California case has directly addressed the issue of confidential source information held on behalf of a reporter by third parties, California courts have long held that constitutional interests protect documents held by third parties.

"The reporter's privilege protects the non-party journalists from disclosing the source of any information procured in connection with his journalistic endeavors, as well as any unpublished information obtained or prepared while gathering, receiving or processing information for communication to the public," the filing stated.

The reporters of the two sites "cannot be compelled to disclose the source of any information procured in connection with their journalistic endeavors," the brief said. "A protective order is proper because Apple Computer cannot show a likelihood that the information it seeks from the journalists will lead to the discovery of admissible evidence, and therefore cannot overcome the burden, expense and intrusiveness that its discovery will cause."

The filing also revealed that Apple has been putting pressure on the Internet service providers of each of the defendants, trying to coax them into turning over e-mails that could reveal who might have leaked information to the Web sites.

Apple subpoenaed PowerPage publisher Jason O'Grady's Internet service provider, Nfox.com, in an effort to obtain e-mails sent to O'Grady, the filing revealed. The EFF contends that Apple's action "undermines a fundamental, First Amendment right that protects all reporters." Nfox.com informed Apple that certain e-mail messages in O’Grady’s e-mail account contained the term “Asteroid.”

"By communicating the content of O’Grady’s communications to Apple, apparently without prompting, Nfox violated the Stored Communications Act," the filing read. Lawyers for EFF also asked the court to dismiss the records obtained from Nfox saying the federal law prohibts “knowingly divulg[ing] to any person or entity the contents of a communication while in electronic storage by that service.".

The filing also addresses questions of whether online journalists deserve the same protection and rights as print and media reporters.

"The reporter’s privilege applies to online publication and print publication equally," the filing noted. "Both print magazines and online magazines share the essential characteristics of journalism, especially as more and more news publications are exclusively online."

"Instead of going after leaks in their own company, Apple is trying to use journalists as a way to perform their dirty work," EFF lawyer Kurt Opsahl told The Mac Observer. "This is not what the First Amendment is all about. If the court grants Apple's request, then it undermines the relationship between sources and journalists. That will lead to people not wanting to trust reporters. Ultimately it would hurt the public because they would lose a vital outlet for news, analysis and commentary."

In December, Apple filed a seven-page "John Doe" lawsuit and requested the owners of three Mac news Web sites produce all "documents relating to the identity of any individual or individuals who have knowledge regarding the source of posts on its site disclosing information about the product." Since that time, Apple has dismissed its complaint against ThinkSecret.com.

"This information could have been obtained only through a breach of an Apple confidentiality agreement," Apple argued in court documents. "To succeed, Apple must develop innovative products and bring those products to market in advance of its competitors. If Apple competitors were aware of Apple's future production information, those competitors could benefit economically from that knowledge by directing their product development or marketing to frustrate Apple's plans."

EFF and the law firms of Tomlinson Zisko and Richard Wiebe are defending Jason O'Grady, the owner of PowerPage.org, Kasper Jade, who publishes AppleInsider.com under a pseudonym, and Monish Bhatia, who publishes the MacNN.com and provides systems administration, bandwidth allocation and other operational services to AppleInsider.com.

Of interesting note: The EFF filing states that none of the defendants in the case have been officially served by Apple Computer -- more than two months after Apple filed its first motion. Under California law, no civil case can progress if the defendants have not been personally given a copy of the court complaint. Some have concluded that by not serving the defendants in a timely fashion Apple had no intention to follow through with the case and instead was trying to dissuade certain Mac news sites from publishing any further stories about then un-announced products. Within days of filing the complaint, ThinkSecret.com published reports of the Mac mini. Within a week of the report, Apple filed suit against Think Secret for leaking the news.

A spokesman for the O'Melveny & Myers law firm, which is representing Apple, did not return phone calls from TMO Monday reacting to the EFF filing.