Rights of Online Journalists Hang in the Balance

San Jose - A Santa Clara County Superior Court judge today said that he would take under consideration a motion brought by the Electronic Frontier Foundation (EFF) that asked the court to protect three online journalists from having to reveal the identities of their confidential sources to attorneys from Apple Computer, Inc. The judge promised a written decision soon.

Apple is suing several unnamed individuals, called "Does," who allegedly leaked information about an upcoming product code-named "Asteroid." Apple has subpoenaed Nfox, the Internet service provider (ISP) for PowerPage.com publisher Jason O'Grady, demanding that the ISP turn over the communications and unpublished materials O'Grady obtained while he was gathering information for his articles about "Asteroid." Apple has also been granted permission to issue subpoenas directly to EFF clients PowerPage and AppleInsider for similar information.

EFF lawyers, along with co-counsel Thomas Moore III and Richard Wiebe, argued this morning that these online reporters' confidential sources and unpublished material are protected by both the reporter's shield in the California constitution and the reporter's privilege under the federal First Amendment.

The court was interested in the question of whether online reporters are legitimate journalists, but for most of the hearing, the judge assumed that they were journalists and examined whether the reporter's shield should apply in this case. Under the First Amendment, the reporter's privilege is qualified -- it does not protect reporters under all circumstances. But subpoenas to journalists are always a last resort. The hearing examined whether Apple had overcome this qualified privilege to demonstrate that its need for the information was greater than the need to protect the confidentiality of these journalists' sources.

"We don't believe Apple has exhausted all methods of getting this information," said EFF Staff Attorney and Bruce J. Ennis Fellow Kevin Bankston. "Apple hasn't subpoenaed any of its employees the way it subpoenaed our clients' ISP. Nor has it deposed any of its employees in the case."

Added EFF Staff Attorney Kurt Opsahl, "We're pleased that the court is taking the time to consider how important it is to protect these journalists' sources if we want to maintain the free flow of information that is vital to a democratic society and a free press."

If the motion is denied, EFF will ask the California Court of Appeals to intervene.


Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation

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