EFF to Appeal Apple Trade Secret Case

The Electronic Frontier Foundation is heading back into the courtroom on April 20 to appeal a ruling last year that could have far reaching consequences for bloggers and journalists. In that decision, Santa Clara County Superior Court Judge James Kleinberg's said that journalists and their ISPs can be obligated to identify confidential sources.

The case stemmed from a "John Doe" lawsuit filed by Apple against Web sites, including Jason O'Grady's PowerPage, which provoked Apple after it disclosed the company's designs for a FireWire-based interface for GarageBand code-named "Asteroid." Apple was given permission to subpoena both O'Grady and other rumor site AppleInsider.

Apple contended that its "trade secrets" were unlawfully disclosed and insisted that the sites reveal their anonymous sources. The EFF asserted that Internet reporters and bloggers are protected by shield laws, which afford journalists protection under the California constitution and under the First Amendment guaranteeing free speech.

Judge Kleinberg, however, sided with Apple and said that, "An interested public is not the same as public interest." He added that shield laws don't matter, as trade secret laws were violated.

In response, the "EFF petitioned to correct the trial court’s manifest error and restore the previously well-settled constitutional protections for a journalist’s confidential information, upon which the practice of journalism and the freedom of the press depend," it explained. A hearing has been set for April 20, 2006 to hear Apple's argument.

The EFF claims the decision's "sweeping terms threaten every journalist, whether publishing in print, radio, television, or on the Internet." However, in March 2005 the EFF acknowledged to BetaNews that, "State court rulings at the lowest court level (called the Santa Clara County Superior Court) are not citable."

Intel and the Business Software Alliance have backed Apple in the case. In a joint brief supporting the decision, the companies stated, "There is no public interest in having such trade secrets stolen and plastered on the Internet for competitors and others to see. They (journalists) have been conduits of stolen information and their files contain direct evidence of that illegal conduct."

But many journalists have publicly disputed such a claim. "I have a broad view of what customers need to know. They need to know when a company is killing a product, altering its roadmap, or delaying the introduction of a system due to bugs. Users need to have this information to make informed decisions. And we as journalists are obligated to provide it," Mary Jo Foley, editor of the Microsoft Watch newsletter, said last year.

For its part, the EFF says it is "fighting to ensure that bloggers and other online writers get the same rights as offline journalists and can protect the confidentiality of their sources."