The posted information was a trade secret, said the Court, and
Apple was entitled to find out the source of that information.
The computer giant filed suit in December against unnamed
individuals who allegedly leaked information about an upcoming
Apple product code-named "Asteroid" to several internet news
sites.
Apple subpoenaed Nfox, the 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unpublished materials O'Grady obtained while he was gathering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 was also granted permission to subpoena news sites
PowerPage and AppleInsider for similar information. According to
civil liberties group the Electronic Frontier Foundation (EFF),
these subpoenas have not yet been issued.
The EFF, along with two local law firms, is acting for the three
journalists involved in the case, and had asked the California
Superior Court for a protective order, arguing that on-line
journalists are protected by the same reporter's privilege laws
that shield print journalists from having to reveal the names of
anonymous sources.
On Friday, ruling on the order, Santa Clara County Superior
Court Judge James Kleinberg denied the request.
Judge Kleinberg said that Apple had made out a case that the
information in question related to proprietary trade secrets and
had made adequate internal inquires to justify the subpoenas.
Neatly avoiding the issue of whether on-line journalists and
bloggers had the same rights and protections as mainstream
journalists, Judge Kleinberg focused on the stolen nature of the
information.
"The public has had, and continues to have, a profound interest
in gossip about Apple," he wrote. "Therefore, it is not surprising
that hundreds of thousands of 'hits' on a web site about Apple have
and will happen. But an interested public is not the same as the
public interest."
"Unlike the whistleblower who discloses a health, safety or
welfare hazard affecting all, or the government employee who
reveals mismanagement or worse by our public officials, the movants
are doing nothing more than feeding the public's insatiable desire
for information," he added.
Judge Kleinberg stressed that his ruling relates only to the
protective order, and not to the merits of Apple's case, or any
defenses to it.
"We're disappointed that the trial court ignored the Supreme
Court's requirement that seeking a journalist's confidential
sources be a 'last resort' in civil discovery," said EFF Staff
Attorney Kurt Opsahl. "Instead, the court asserts a wholesale
exception to the journalist's privilege when the information is
alleged to be a trade secret."
"This is a broad-brush ruling that threatens journalists of all
stripes," added EFF Legal Director Cindy Cohn.
The EFF confirmed that an appeal will be filed.
