- What is the issue in Apple v. Does?
- Who is Apple suing?
- Who are Jason O'Grady, Kasper Jade, and Monish Bhatia?
- Are these online journalists the defendants in the Apple v. Does lawsuit?
- Has Apple directly subpoenaed the online journalists yet?
- What has EFF done?
- What were EFF's arguments for a protective order?
- Did the Superior Court grant the protective order?
- Is EFF appealing the decision?
- Did the Santa Clara Superior Court decide who is a journalist?
- Is Apple v. Does the same as the Think Secret case?
- Do the reporters for Apple Insider or PowerPage work for Apple? Did the reporters steal the information from Apple? Did the reporters bribe anyone at Apple to get the information?
- Are Apple Insider and PowerPage really online news sites?
- Are Apple Insider and PowerPage online diaries?
- Isn't PowerPage's email protected by Federal privacy law?
- What is the California reporter's shield?
- Who does the California reporter's shield protect?
- Is there also a constitutional reporter's privilege that protects the freedom of the press?
- Is protecting journalists' sources important to the freedom of the press?
- What is the difference between the California reporter's shield and the constitutional reporter's privilege?
- How is the constitutional privilege qualified?
- How do courts determine who is entitled to the constitutional privilege?
- Can the reporter's privilege protect sources or unpublished information in criminal cases?
- But what about Apple's business rights?
1. What is the issue in Apple v. Does?
Can Apple Computer, Inc. subpoena information revealing the confidential sources used for news stories that were published by online news sites Apple Insider and PowerPage? EFF, representing the online journalists, says "No!"
Unknown defendants, or "John Does." In December 2004, Apple filed a lawsuit in Santa Clara County Superior Court against unnamed individuals, presumably Apple employees or contractors, who allegedly misappropriated Apple's trade secrets by leaking information about an upcoming Apple product to online news sites Apple Insider and PowerPage. These news sites had published articles regarding a FireWire audio interface for GarageBand, codenamed "Asteroid" or "Q7."
3. Who are Jason O'Grady, Kasper Jade, and Monish Bhatia?
The three online journalists EFF is representing. Jason is the publisher of PowerPage, Kasper is the publisher of Apple Insider, and Monish is one of Apple Insider's hosting providers as well as the publisher of another Apple-related news site, MacNN.com.
4. Are these online journalists the defendants in the Apple v. Does lawsuit?
No, Apple has not named the journalists as defendants. The defendants are unidentified "Doe" parties, presumably Apple employees who leaked information about Asteroid. The online journalists are not defendants in any criminal action, and no criminal investigation is underway.
5. Has Apple directly subpoenaed the online journalists yet?
No, Apple has instead subpoenaed the email provider of one of the journalists. Apple has served Nfox.com, PowerPage's email service provider, with a subpoena for emails belonging to Jason O'Grady that Apple believes may identify his confidential source. Subpoenas were issued in both California and Nevada, to Nfox's office in Las Vegas and its owner Karl Kraft in Los Angeles.
EFF filed a motion for a protective order on behalf of the online journalists. On February 14, 2005, EFF moved for a protective order from the Superior Court that would invalidate the subpoenas to email provider Nfox as well as prohibit future subpoenas to the online journalists or their service providers.
7. What were EFF's arguments for a protective order?
As explained in more detail below, EFF argued that Apple's discovery of the online journalists' confidential sources would violate:
8. Did the Superior Court grant the protective order?
No. On March 11, 2005, the Santa Clara court issued a written order denying the motion, but delayed the effect of its order until March 22, 2005, so the journalists could appeal the decision.
9. Is EFF appealing the decision?
Yes. On March 22, the journalists filed a petition for a writ with the California Court of Appeal, seeking to overturn the Superior Court's order. The Superior Court's ruling confused the protection from discovery afforded by the reporter's privilege with immunity from substantive liability, exalted statutory trade secret protection over constitutional rights, misapplied the test for when the constitutional reporter's privilege may be overcome, and ignored the Stored Communications Act altogether.
10. Did the Santa Clara Superior Court decide who is a journalist?
No. The Court assumed that the journalists were indeed journalists for the purposes of the opinion.
11. Is Apple v. Does the same as the Think Secret case?
No. Apple filed a separate trade secret suit directly against Think Secret on January 4, 2004. On March 4, 2005, Think Secret filed a special motion to have Apple's lawsuit against the site dismissed on First Amendment grounds. For more information see http://www.thinksecret.com/news/antislapp.html.
12. Do the reporters for Apple Insider or PowerPage work for Apple? Did the reporters steal the information from Apple? Did the reporters bribe anyone at Apple to get the information?
No. None of the reporters for Apple Insider or PowerPage are Apple employees. They did not steal any information from Apple, nor did they bribe anyone at Apple to provide the information.
13. Are Apple Insider and PowerPage really online news sites?
Yes. The publishers, editors and authors connected with Power Page and Apple Insider are engaged in trade journalism, bringing news to hundreds of thousands of visitors per month. According to the expert opinion of Professor Thomas Goldstein, former Dean of the Columbia University Graduate School of Journalism and of the University of California at Berkeley Graduate School of Journalism,
14. Are Apple Insider and PowerPage online diaries?
No. Neither Apple Insider nor PowerPage are personal online diary blogs.
PowerPage has been providing daily news coverage of Apple products for nearly ten years, publishing an online news site that includes news reports, feature stories and editorials, as well as how-to's, tips and other practical advice for Macintosh users.
Apple Insider has been publishing its online news magazine for nearly seven years, providing its readers with a daily collection of articles, editorials, stories, pictures, and other features about Apple products.
15. Isn't PowerPage's email protected by Federal privacy law?
Yes. The federal Stored Communications Act, 18 U.S.C. § 2701 et seq., forbids an electronic communication service provider like Nfox from disclosing the contents of a customer's emails and other electronic communications to private parties. While the Act provides certain exceptions, none of the exceptions are for civil subpoenas from private parties.
16. What is the California reporter's shield?
Originally enacted as Section 1070 of the Evidence Code, the people of California elevated the California reporter's shield to the California Constitution in 1980, illustrating the voter's "intention to favor the interests of the press in confidentiality over the general and fundamental interest of the state in having civil actions determined upon a full development of material facts." The California Supreme Court has held that the California reporter's shield provides "absolute protection to nonparty journalists in civil litigation from being compelled to disclose unpublished information." It may be "overcome only by a countervailing federal constitutional right."
17. Who does the California reporter's shield protect?
The California reporter's shield protects all persons "connected with ... a newspaper, magazines, or other periodical publication," without limitation. According to Professor Goldstein, "O'Grady's PowerPage and Apple Insider are online publications that are the electronic equivalent of print publications like newspapers or magazines."
18. Is there also a constitutional reporter's privilege that protects the freedom of the press?
Yes. The California Supreme Court has found that the California and federal constitutions provide journalists with "a qualified privilege to withhold disclosure of the identity of confidential sources and of unpublished information supplied by such sources."
19. Is protecting journalists' sources important to the freedom of the press?
Yes. As the California Supreme Court acknowledged, "Without an unfettered press, citizens would be far less able to make informed political, social, and economic choices. But the press' function as a vital source of information is weakened whenever the ability of journalists to gather news is impaired. Compelling a reporter to disclose the identity of a source may significantly interfere with this news gathering ability; journalists frequently depend on informants to gather news, and confidentiality is often essential to establishing a relationship with an informant."
20. What is the difference between the California reporter's shield and the constitutional reporter's privilege?
The California reporter's shield provides journalists with an absolute privilege against being held in contempt of court for refusal to name sources or provide unpublished information; the constitutional reporter's privilege provides a qualified privilege against disclosure.
21. How is the constitutional privilege qualified?
The California Supreme Court set forth a multi-factor balancing test for deciding the applicability of the constitutional reporter's privilege in civil cases. In the ordinary civil case, the privilege will prevent discovery.
22. How do courts determine who is entitled to the constitutional privilege?
The test is whether the person seeking to invoke the reporter's privilege had the intent to use material-sought, gathered or received-to disseminate information to the public and whether such intent existed at the inception of the newsgathering process. Under this test, courts have provided the privilege to non-traditional journalists, including book authors and documentary filmmakers.
23. Can the reporter's privilege protect sources or unpublished information in criminal cases?
Yes. As noted by the California Supreme Court, "The threat to the autonomy of the press is posed as much by a criminal prosecutor as by other litigants." The reporter's privilege has been applied when journalists have information useful to prosecutors, even where the source is accused of first-degree murder, and has confessed to the reporter.
However, this is not a criminal case.
24. But what about Apple's business rights?
This case is not about whether Apple has the right to protect its alleged trade secrets. It is only about the means by which it can seek evidence to determine which, if any, person leaked information to the press. Apple is free to use any legal means at its disposal to investigate the unauthorized release of information about upcoming products, other than seeking journalists' sources and unpublished information.
