1ST AMENDMENT DOESN’T APPLY TO T/SECRETS

[Anonymous]

Reporters ordered to reveal Apple sources
Judge rules First Amendment
doesn’t apply to trade secrets


SAN JOSE, Calif. – A California judge on Friday ruled
that three independent online reporters may have to divulge confidential sources
in a lawsuit brought by Apple Computer Inc., ruling that there are no legal
protections for those who publish a company’s trade secrets.

Apple sued 25 employees who allegedly leaked confidential
product information to three Web publishers. The Cupertino-based company said
the leaks violated nondisclosure agreements and California’s Uniform Trade
Secrets Act. Company attorneys demanded that the reporters identify their
sources.

The reporters sought a protective order against the
subpoenas, saying that identifying sources would create a “chilling effect” that
could erode the media’s ability to report in the public’s interest.

But Santa Clara County Superior Court Judge James
Kleinberg ruled in Apple’s favor, saying that reporters who published “stolen
property” weren’t entitled to protections.

“What underlies this decision is the publishing of
information that at this early stage of the litigation fits squarely within the
definition of trade secret,” Kleinberg wrote. “The right to keep and maintain
proprietary information as such is a right which the California Legislature and
courts have long affirmed and which is essential to the future of technology and
innovation generally.”

Reporters to appeal
Free
speech advocates and attorneys for the reporters criticized the ruling,
insisting that all journalists should enjoy the same legal protections as
reporters in mainstream newsrooms.

Among those are protections afforded under California’s
“shield” law, which is meant to protect journalists and encourage the
publication of information in the public’s interest.

“This opinion should be concerning to reporters of all
stripes, especially those who report in the financial or trade press and are
routinely reporting about companies and their products,” said Electronic
Frontier Foundation attorney Kurt Opsahl, who represented the reporters.

He said the trio would appeal the judge’s ruling.

Apple spokesman Steve Dowling said the ruling affirmed
the company’s view that “there is no license conferred on anyone to violate
valid criminal laws.”

The case has been widely watched in the fast-growing
world of Web logs — or blogs, Web sites that contain articles or diary entries
and that recently have propelled stories into the mainstream.

Judge: Privilege ‘not
absolute’
Kleinberg, however, ruled that no one has the right to
publish trade secrets that only could have been provided by someone breaking the
law.

“The journalist’s privilege is not absolute,” Kleinberg
wrote. “For example, journalists cannot refuse to disclose information when it
relates to a crime.”

In December, Apple sued several unnamed individuals,
called “Does,” who leaked specifications about a product code-named “Asteroid”
to Monish Bhatia, Jason O’Grady and another person who writes under the
pseudonym Kasper Jade. Their articles appeared in the online publications Apple
Insider and PowerPage.

In a court hearing last week, Apple attorneys said that
Bhatia, O’Grady and Jade weren’t necessarily journalists — merely people who
disseminated product releases and other data, adding little analysis or
journalistic context.

Kleinberg refused to say whether Bhatia, O’Grady and Jade
were members of a protected class of journalists. He did not rule against the
reporters because they wrote for relatively obscure Internet sites, he said, but
because they violated trade secret laws.

“Defining what is a ‘journalist’ has become more
complicated as the variety of media has expanded,” Kleinberg wrote. “But even if
the movants are journalists, this is not the equivalent of a free pass.”

They said Apple was trying to curtail their First
Amendment rights because they lacked the legal and financial resources of
mainstream publications to fight such information requests.

“Apple is using this case as a desperate attempt to
silence the masses of bloggers and online journalists that it cannot control but
feels it can intimidate,” Jade.

[Author]

March 19, 2005 at 9:53 AM