A California appeals court judge has ruled in favor of a petition filed by the EFF that frustrates Apple's attempt to force rumor sites AppleInsider and Powerpage to reveal their sources. In 2004, web site AppleInsider published an "exclusive" account of a new Apple product alleged to be in development, a breakout box for GarageBand dubbed Asteroid (presumably because it allowed you to rock. Rimshot!).

The ruling concludes that trade secrets do not categorically transcend freedom of the press, that there is no relevant legal distinction between journalistic blogging and journalism with regards to the shield law, and that Apple's attempt to subpoena the e-mail service provider of one of the sites was a violation of the federal Stored Communications Act.

A brief history of Apple v. Does, and its significance

Following the unauthorized disclosure of alleged proprietary Apple trade secrets, Apple subpoenaed (PDF) several web site publishers along with their e-mail providers in order to discover where they got their information about Asteroid. Challenging Apple's subpoenas, the EFF filed a petition (PDF) for a protective order in Santa Clara Superior Court insisting that the site's and their works are entitled to protection under the shield law.

Then in March of 2005, Superior Court Judge James Kleinberg issued a decision (PDF) in favor of Apple, asserting that the legal protections conferred upon journalists by the first amendment and the California shield law do not imbue reporters with the right to disseminate trade secrets divulged to them by others.

The EFF appealed (PDF) the ruling, suggesting that coerced disclosure of journalistic sources would silence potential whistle-blowers by depriving them of the ability to remain anonymous. Pointing out that important information about dangerous products could be obscured from public scrutiny by the excessive application of trade secret laws, the EFF argued that Apple shouldn't be allowed to arbitrarily silence journalists when the company had failed to pursue due diligence and internal investigation. Under the interpretation of the first amendment, subpoenas necessitating disclosure of a journalist's source are supposed to be used only when no other means of attaining the relevant information are available. The EFF hoped to demonstrate that Apple had not conducted their own investigation in good faith.

In September of 2005, additional evidence emerged to support the EFF's claim that Apple had failed to internally investigate the leak before initiating legal action, a distinctly ironic revelation in light of the fact that Apple had attempted to deflect examination of its internal investigatory policies by claiming that the procedures used in their investigations were themselves trade secrets.

During the appellate court proceedings, the judges vigorously examined Apple's claims, challenging the computer company's assertion that the information disclosed by the journalists constituted a trade secret, and questioning the adequacy of Apple's internal investigation.

Understanding California's shield law

In general, shield laws are designed to prevent journalists from being held in contempt of court for refusing to disclose a source. The California shield law specifically offers this protection to any "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 so employed."

The law states that individuals that are eligible for protection cannot be compelled "to disclose, in any proceeding as defined in ? 901, the source of any information procured while so connected or employed for publication in a newspaper, magazine or any 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." Section b of the California shield law extends the same protections to radio and television news reporters.

The California shield law only has one major exception: shield protection is not applicable when the testimony of a journalist is required in order to ensure that a defendant in a criminal case receives the constitutional right to a fair trial.

In 2000, the California shield law was expanded to add some minor additional protections in order to prevent law enforcement agencies from exploiting loopholes in the legislation. When Assemblywoman Carol Midgen proposed the expansion, she also issued a legislative report that articulated with great clarity the importance of the shield law. The report contained the following tremendously cogent summary:

Journalists are professional investigators. The main purpose of the shield law is to prevent government from making journalists its investigative agents and to prevent a journalist who is trying to cover the story from becoming part of the story (which makes them wholly unable to cover it). Increasingly, when a criminal case is newsworthy, the first thing (not the last thing) defense attorneys do is subpoena any journalist who has covered the story.

In this case, Apple v. Does, applicability of the shield law is an important aspect. In a way, Apple is attempting to utilize the writers in question as its own investigators, trying to force them to reveal the source of Apple's leak so that the company wont have to fully pursue an internal investigation. Apple believes that it has the authority to force compliance with its demands in part because the company's legal representatives are convinced that bloggers are not entitled to shield law protection. Although the superior court sided with Apple, the appellate court sided with the bloggers.

The appellate court ruling

The decision (PDF) issued by the California Court of Appeals in favor of the petitioners echoes many of the concerns articulated by the EFF. One of the most significant sections of the decision discusses the shield law and its applicability to the petitioners and this particular case. Apple argued that the petitioners intentionally engaged in "trade secret misappropriation," and that the goal of the petitioners' articles was not journalistic in nature. The appellate judges rejected the distinction, ruling that any effort to establish distinctions that address journalistic legitimacy is fundamentally antithetical to the function of the first amendment:

"We can think of no workable test or principle that would distinguish 'legitimate' from 'illegitimate' news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace."

Now we get to Apple's claim that bloggers are not entitled to shield law protection. This is possibly the single most important issue associated with this case, because it deals directly with the question of whether or not bloggers have the same rights as professional journalists. Apple's assumption regarding applicability of the shield law to bloggers is based on two arguments: Apple says that the petitioners do not fall into any of the categories of individuals entitled to protection under the terms of the California shield law, and that the shield law does not recognize or address Internet publications.

Apple claims that bloggers "are not members of any professional community governed by ethical and professional standards," and that shield law protection could then lead to abuse and misconduct. (Ironically, if trade secrets were completely protected from journalistic disclosure as Apple desires, intellectual property law could also be be abused to conceal misconduct.) In the decision, the judges argue that Internet news publication by bloggers is functionally identical to professional journalism within the context of the shield law:

"[T]he open and deliberate publication on a news-oriented Web site of news gathered for that purpose by the site's operators ... appears conceptually indistinguishable from publishing a newspaper, and we see no theoretical basis for treating it differently. Beyond casting aspersions on the legitimacy of petitioners' enterprise, Apple offers no cogent reason to conclude that they fall outside the shield law's protection."

With regards to Internet publications, the judges concluded that the term "periodical publication" is applicable to the Mac rumor sites, and that the petitioners are entitled to shield law protection as a result:

"[The legislature] must have intended that the statute protect publications like petitioners', which differ from traditional periodicals only in their tendency, which flows directly from the advanced technology they employ, to continuously update their content. We conclude that petitioners are entitled to the protection of the shield law, which precludes punishing as contempt a refusal by them to disclose unpublished information."

Although the judges do not state outright that bloggers are entitled to shield law protection (they explicitly avoid doing so because they feel that the term "blog" is too amorphous to be the subject of a legal precedent), they more or less imply that those who work on web based publications designed to provide news are entitled to shield law protection, and need not reveal their sources.

The judges also briefly addressed whether or not the petitioners are entitled to the constitutional right to freedom of the press. This issue receives only superficial attention, because the matter is simply not disputed by Apple. The judges state the obvious:

"[W]e can see no sustainable basis to distinguish petitioners from the reporters, editors, and publishers who provide news to the public through traditional print and broadcast media. It is established without contradiction that they gather, select, and prepare, for purposes of publication to a mass audience, information about current events of interest and concern to that audience."

In the subsection entitled Importance of Preserving Confidentiality, the judges examine the implications of Apple's claims and discuss the importance of protecting the identity of journalistic sources. The judges start off the section by analyzing Apple's argument that the public has no right to access corporate trade secrets. The appellate judges disagree with Judge Kleinberg, and argue that classifying a piece of information as a trade secret does not give it unlimited protection from journalistic disclosure:

Apple first contends that there is and can be no public interest in the disclosures here because "the public has no right to know a company's trade secrets." Surely this statement cannot stand as a categorical proposition. As recent history illustrates, business entities may adopt secret practices that threaten not only their own survival and the investments of their shareholders but the welfare of a whole industry, sector, or community. Labeling such matters "confidential" and "proprietary" cannot drain them of compelling public interest. Timely disclosure might avert the infliction of unmeasured harm on many thousands of individuals, following in the noblest traditions, and serving the highest functions, of a free and vigilant press. It therefore cannot be declared that publication of "trade secrets" is ipso facto outside the sphere of matters appropriately deemed of "great public importance."

Next, the judges approach the difficult issue of resolving conflicts between the rights of intellectual property holders and the rights of journalists. In the decision, the judges state that when intellectual property rights conflict directly with the journalistic function of disclosure in the name of public interest, freedom of expression necessarily takes priority:

This case involves not a purely private theft of secrets for venal advantage, but a journalistic disclosure to, in the trial court's words, "an interested public." In such a setting, whatever is given to trade secrets law is taken away from the freedom of speech. In the abstract, at least, it seems plain that where both cannot be accommodated, it is the statutory quasi-property right that must give way, not the deeply rooted constitutional right to share and acquire information.

The decision also addresses issues relating to the content and nature of the articles written by the petitioners. The judges point out that the "trade secrets" exposed by the Apple rumor sites didn't include any specific information regarding technological methods or innovations, and that the Asteroid device itself isn't particularly unique or innovative. The judges seem to feel that articles about the future release of a product carry more value as items of public interest than articles that disclose the secret methods and techniques used by a product:

Here, no proprietary technology was exposed or compromised. There is no suggestion that anything in petitioners' articles could help anyone to build a product competing with Asteroid. Indeed there is no indication that Asteroid embodied any new technology that could be compromised. ... The newsworthiness of petitioners' articles thus resided not in any technical disclosures about the product but in the fact that Apple was planning to release such a product, thereby moving into the market for home recording hardware. ... Such a secret plan may possess the legal attributes of a trade secret; that is a question we are not here required to decide. But it is of a different order than a secret recipe for a product. And more to the point, the fact of its impending release carries a legitimate interest to the public that a recipe is unlikely to possess.

The decision also addresses the intrinsic newsworthiness of the content in question. The appellate court judges challenge Judge Kleinberg's assumption that, although public interest is served by disclosure of safety hazards, it is not served by disclosure of an upcoming product release. The appellate judges argue that the release of new products, particularly technological products, can have a profound impact on society, and consequently constitute a subject of public interest:

"More generally, we believe courts must be extremely wary about declaring what information is worthy of publication and what information is not. At first glance it might seem that Asteroid is nothing more than a hobbyist's gadget with no ponderable bearing on the great issues of the day. But such an impression would be, in our view, erroneous. ... [Apple's entry into the audio production market] would inevitably contribute to blurring the line between professional and amateur audio production, and hence between professional and amateur composing and performing, in much the same way that the personal computer coupled with telecommunications technology has blurred the distinction between commercial and amateur publishing. The decentralization of expressive capacity represented by such developments is unquestionably one of the most significant cultural developments since the invention of the printing press."

Although I think the judges overstate the significance of Apple's product, the point they make is valid and very important. Product releases can have a profound impact on the technology industry, on consumers, and on the very nature of modern society. Although Asteroid itself may not be particularly significant, the availability of information about such products is essential to modern consumers, and the judges argue that unfettered access to such information is a fundamental right:

"It is often impossible to predict with confidence which technological changes will affect individual and collective life dramatically, and which will come and go without lasting effects. Any of them may revolutionize society in ways we can only guess at. The lawful acquisition of information necessary to anticipate and respond to such changes is the birthright of every human, formally enshrined for Americans in our state and federal constitutions. The publications at issue here fully implicated that birthright and the interests protected by those constitutional guarantees."

The ruling of the appellate court and the issues addressed in the written decision represent an enormous victory for free speech advocates and the entire independent press community. Assuming that the decision doesn't get overturned by a higher court, the precedent established by this case could potentially help to ensure that journalistic bloggers receive full protection under state shield laws. This case also affirms that intellectual property law doesn't universally take priority over freedom of speech. EFF Staff Attorney Kurt Opsahl comments:

"Today's decision is a victory for the rights of journalists, whether online or offline, and for the public at large," said EFF Staff Attorney Kurt Opsahl, who argued the case before the appeals court last month. "The court has upheld the strong protections for the free flow of information to the press, and from the press to the public."

As a journalist that specializes in technology, I have had countless opportunities over the years to witness the impact of emerging technologies and I can't help but agree with the assessment of the judges as a result. Access to information about emerging technologies and technological products is necessary for those that wish to live and thrive in the modern world. Without information about the latest technologies, we can't make informed purchasing decisions, and we will be unable to take advantage of the fruits of technological progress. As a result, the availability of such information (or sometimes, the lack thereof) has a profound impact on the quality of our lives. It is encouraging to see judges openly acknowledging the value and importance of independent Internet news sources, and actively trying to protect them.