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5/26/2006
08:32 PM
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Apple's Effort To Unmask Journalists' Sources Fails

A California appeals court ruled against Apple, saying journalists have the same right to protect confidential sources both online and off.

A California state appeals court Friday stymied Apple's effort to unmask unknown individuals suspected of leaking information to online news sites, ruling that journalists have the same legal right to protect the confidentiality of their sources online or off.

In December 2004, Apple sued several unnamed individuals who allegedly revealed information about an unreleased music hardware product. Apple charged that the defendants leaked information to several Web sites including AppleInsider.com and PowerPage. Apple subsequently subpoenaed Nfox, the ISP for PowerPage.com publisher Jason O'Grady, to examine O'Grady's communications and related records in order to identify the unknown targets of its lawsuit.

In March of this year, Santa Clara County Superior Court Judge James Kleinberg affirmed Apple's right to force online publishers to disclose their sources of confidential information. "There is no license conferred on anyone to violate valid criminal laws," Judge Kleinberg wrote in his ruling.

The Sixth District Court of Appeals disagreed. Though the judges accepted Apple's argument that it's entitled to protect its trade secrets, they ultimately ruled against the company for failing to demonstrate that it had exhausted its investigative options to find the alleged leakers.

Today's ruling was hailed in a statement by EFF attorney Kurt Opsahl, who argued the case before the appeals court, as "a victory for the rights of journalists, whether online or offline, and for the public at large."

It should also be welcomed by Internet service providers because it recognizes that the law protects them from subpoenas for customer records unless there are no other options.

Finally, the ruling is noteworthy because it takes Apple to task for its "dismissive characterization" of the defendants as something other than journalists.

At least in California, it seems there's no reason to make a distinction between bloggers and journalists because the state's shield law protects those engaged in news gathering. According to the ruling, the law "extends to every 'publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication'...We can think of no reason to doubt that the operator of a public Web site is a 'publisher' for purposes of this language."

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