Copyright 2005, Associated Press

Download a copy of the amicus brief in a PDF file

(Associated Press 4/11/05) -- More than a half-dozen news organizations are supporting three online reporters who wrote about a top-secret product that Apple Computer Inc. says was protected by trade secret laws.

In December, Apple sued 25 unnamed individuals - possibly Apple employees - who allegedly leaked confidential product information to three Web publishers. The Cupertino-based company said the leaks violated nondisclosure agreements and California's Uniform Trade Secrets Act.

In Apple's attempts to identify the source of the leaks, the company asked the reporters' Internet providers to turn over e-mail records.

The reporters - Monish Bhatia, Jason O'Grady and another person who writes under the pseudonym Kasper Jade - tried to block the subpoenas. They said that identifying sources would create a "chilling effect" that could erode the media's ability to report in the public's interest.

But Santa Clara County Superior Court Judge James Kleinberg ruled in Apple's favor last month, saying that reporters who publish "stolen property" aren't entitled to protections. The reporters appealed.

Now the mainstream media have weighed in: Eight of California's largest newspapers and The Associated Press submitted a court brief Thursday asking that the online publishers be allowed to keep their sources confidential.

The media companies said Kleinberg's ruling, if upheld, could impair the ability of all journalists to report important news.
Before demanding that the online publishers' Internet providers turn over e-mail records, the companies said, Apple should "exhaust all alternative sources" of identifying the source of the leaks.

"Recent corporate scandals involving Worldcom, Enron and the tobacco industry all undoubtedly involved the reporting of information that the companies involved would have preferred to remain unknown to the public," the 38-page brief stated. "Just because a statute seeks to protect secrecy of such information does not mean that the First Amendment protections
provided to the news media to inform the public are wiped away."

Signing the brief were the Tribune Co.'s Los Angeles Times, Hearst Newspapers' San Francisco Chronicle, Knight Ridder Inc.'s San Jose Mercury News, The Copley Press Inc.'s San Diego Union-Tribune, Freedom Communications Inc.'s Orange County Register, and The McClatchy Co.'s Bee newspapers in Sacramento, Fresno and Modesto.

Also signing were the California Newspaper Publishers Association, Society of Professional Journalists, Student Press Law Center and the California First Amendment Coalition.

On Friday, the U.S. Internet Industry Association and NetCoalition filed a separate brief. The trade groups, which represent search engines and other online companies, said Internet service providers should be able to protect their clients' confidentiality.

"These protections are critical to ISPs and their ability to provide safe, reliable and secure communications channels to their subscribers," the brief stated.

Apple spokesman Steve Dowling wouldn't comment on the briefs but emphasized that Apple must protect its product secrets. In November, the reporters published information on their Web sites, Apple Insider and PowerPage, about a digital music product code-named "Asteroid."

"Apple's DNA is innovation, and protection of trade secrets is crucial to our success," Dowling said Monday.

In a 46-page document that Apple filed to the appeals court Thursday, attorneys said two investigators from the company's security department questioned employees who had access to the confidential product specifications, threatening to fire them if they lied. They also conducted "broad forensic searches" of Apple's e-mail servers.

Other than subpoenaing Nfox.com, a Las Vegas-based Internet provider that may have e-mail records for at least one of the reporters, Apple attorneys said they had "no other recourse" to finding the source of the leaks.

Apple has also questioned the credentials of the reporters, who publish entirely online and have become a cause celebre among people who produce independent Web logs, or blogs. Although California's largest newsrooms are backing the reporters, in court documents Apple always uses quotation marks around the word journalist, noting that one article was written by someone
named "Dr. Teeth and The Electric Mayhem."

Apple also says the reporters merely reproduced technical specifications that may have tipped off competitors or bungled a planned product launch.

"There may be public curiosity about an individual's wealth, but that would never justify the theft and publication of the individual's tax returns," Apple's court filing stated. "Similarly, no legitimate public interest was served by the theft of Apple's trade secrets."

But Peter Scheer, executive director of the San Rafael-based California First Amendment Coalition, said the reporters were members of the media - and the case could impair all journalists' abilities to develop sources.

"Even if these stories had been written by The New York Times, not only could The New York Times be forced to disclose its sources but because of the nature of the information, The New York Times might even be at risk for criminal prosecution for publishing such a story," Sheer said. "This started out as an important but quirky case about bloggers but it morphed
quickly into a much more important case about First Amendment protections when newspapers are writing about information that can be characterized as being a trade secret."

Dave Tomlin, assistant general counsel for the AP, said the case has implications for bloggers, online reporters and traditional journalists.

"For us, this case is about whether the First Amendment protects journalists from being turned into informants for the government, the courts or anybody else who wants to use them that way," Tomlin said.

Shares of Apple, which is scheduled to release quarterly results Wednesday, fell $1.82, or 4.2 percent, to close at $41.92 on the Nasdaq. The stock rose 15 cents in after-hours trading.

By Rachel Conrad