Copyright 2005, CNET.com

Cheers, jeers for ruling on Apple bloggers

(CNET.com 3/11/05) -- A controversial court ruling that could force online journalists to reveal the identity of confidential sources to Apple Computer is drawing both cheers and jeers in legal circles.

Issued Friday, the ruling states that a Web site that published confidential Apple documents could not protect its sources from an Apple inquiry. In this case, the criminal activity of leaking private corporate data trumped reporters' traditional right to protect their confidential sources, the judge said.

Dan Westman, an attorney specializing in trade secrets law, applauded the decision.

"I think it will be extremely persuasive to any other judge in any other court who reads it," said Westman, a partner at Shaw Pittman in Northern Virginia. "I do believe if it goes up on appeal it would be upheld."

But media attorney Peter Scheer, executive director of the California First Amendment Coalition, said the ruling could be destructive to the operation of an effective media.

"It's a thoughtful but seriously wrong decision," Scheer said. "Under this logic, if the Wall Street Journal ran a story about these documents, it could be prosecuted criminally. That's an absurd result."

The decision comes as part of a broader case in which Apple is seeking the identity of unknown people who leaked confidential prerelease product data that was subsequently published on three separate enthusiast Web sites, including Think Secret, PowerPage and AppleInsider.

The sites themselves are not being sued directly in this case. But Apple has issued a subpoena to PowerPage's Internet service provider, Nfox, asking for e-mail and other records that might be relevant to the case. A separate subpoena has been approved by the court that would force AppleInsider to give up any of its own documents that might relate to the identity of the person who leaked the information.

The Web sites, which are being represented by the Electronic Frontier Foundation, say they are covered by the laws that often protect journalists from having to divulge the identity of their sources. Apple argues that the sites are simply publishing stolen information, and should not benefit from those protections. In a separate case, Apple is suing another enthusiast site--Think Secret--directly for trade secret violations.

In his decision Friday, Santa Clara County Superior Court Judge James Kleinberg avoided the question of whether the enthusiast sites qualified for the same legal protections as traditional journalists, saying that Apple's right to protect its secrets trumped any legal protections afforded reporters under state or federal law.

The information about Apple's unreleased products "is stolen property, just as any physical item, such as a laptop computer containing the same information on its hard drive (or not) would be," the judge wrote. "The bottom line is there is no exception or exemption in either the (Uniform Trade Secrets Act) or the Penal Code for journalists--however defined--or anyone else."

Some media advocates were cautious as they digested the decision's impact on Friday. Terry Francke, founder of open-government organization Californians Aware, said the decision could dissuade corporate sources from talking with journalists, but still left open protections for important public issues.

"I would think that an immediate and direct impact...would be to make future leakers of proprietary company information extremely careful," Franke said. "But I don't think it would be nearly as threatening to whistleblowers with social or politically sensitive information as to those with information of a highly technical nature."

But Scheer said the ruling could cripple business reporting, which often relies on confidential sources inside companies.

"Newspapers and television and radio stations could avoid problems by not doing any of the serious reporting that would involve internal records, and only printing the things that corporations wish you to read," Scheer said. "If they did that, we would have a much less meaningful press."

By John Borland

CNET News.com's Ina Fried contributed to this report.