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EFF Asks Court to Protect Online Journalists

PRESS RELEASE
February 14, 2005

Seeks to Stop Apple From Undermining Reporter's Privilege

Santa Clara County, CA - Today the Electronic Frontier Foundation (EFF) asked a California Superior Court for a protective order that would prevent Apple Computer from forcing three online journalists to identify their confidential sources and hand over unpublished materials. EFF, serving as co-counsel for the journalists, argues that online journalists are protected by the same "reporter's privilege" laws that shield print journalists from having to reveal the names of anonymous sources.

The case began in December 2004, when Apple obtained a court order allowing the company to issue subpoenas aimed at discovering the identities of 20 "Does" who allegedly leaked information about upcoming Apple products to AppleInsider.com and PowerPage.org. After initially threatening to subpoena reporters directly, Apple sent subpoenas to Nfox.com, the email provider for PowerPage publisher Jason O'Grady. By forcing Nfox to hand over O'Grady's email, Apple hopes to find out who told the journalist about an upcoming product code-named "Asteroid."

"Rather than confronting the issue of reporter's privilege head-on, Apple is going to this journalist's ISP for his emails," said EFF Staff Attorney Kurt Opsahl. "This undermines a fundamental, First Amendment right that protects all reporters. If the court lets Apple get away with this, and exposes the confidences gained by these reporters, potential confidential sources will be deterred from providing information to the media, and the public will lose a vital outlet for independent news, analysis, and commentary."

Supporting EFF in this argument are Professor Tom Goldstein, Director of the Mass Communication Program and former Dean of the Journalism School at the University of California at Berkeley, and Dan Gillmor, noted Silicon Valley journalist and founder of Grassroots Media Inc., both of whom filed declarations stating their expert opinion that the writers for PowerPage and Apple Insider are journalists just like the writers for traditional newspapers and magazines. Acting as co-counsel with EFF are Thomas Moore III of Tomlinson Zisko LLP and Richard Wiebe of the Law Office of Richard Wiebe.

In its request for the protective order, EFF points out that reporter's privileges protect the anonymity of sources regardless of whether third parties hold a journalist's records.

Contacts:

Kevin Bankston
Staff Attorney
Electronic Frontier Foundation
bankston@eff.org

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt@eff.org

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