Free Speech Rights at Issue This Week in Apple Lawsuit

A judgment entered in December against bloggers, alleging that they illicitly disclosed trade secrets from Apple Computer (Nasdaq: AAPL) online, may have free speech implications for all online publishers.

"This is not the usual, run of the mill trade secrets case," Karna Berg, an intellectual property attorney with Halleland Lewis Nilan & Johnson, told MacNewsWorld.

The case, called Apple v. Does, is now on appeal, and the Electronic Frontier Foundation (EFF), the online civil rights group, is handling the case this week in appeals court.

Bloggers Targeted

The lawsuit concerns a series of stories that bloggers -- including Jason O'Brady, producer of the PowerPage blog, and a trade rumor site, AppleInsider.com -- reported on a "firewire" interface that Apple Computer had developed for a garage band called "Asteroid." The case was filed in Santa Clara, Calif.'s Superior Court, a municipal-level court.

Initially, Apple used the so-called "John Doe" statute to file its case against the Internet Service Providers (ISPs) who provided online service to the bloggers. After the identity of the bloggers was determined, subpoenas were issued seeking the names of the sources.

"Apple has filed a civil complaint against unnamed individuals who we believe stole our trade secrets and posted detailed information about an unannounced Apple product on the Internet," the company said in a statement, when the case was first announced, back in December, 2004. "Apple's DNA is innovation, and the protection of our trade secrets is crucial to our success."

Apple did not reveal details of the leaked information and has asked the Santa Clara Superior Court to seal some documents pertaining to the case at that time.

Apple, subsequently, subpoenaed Nfox.com, the e-mail service provider for PowerPage, for e-mail messages that may identify the confidential source.

The case was not the first time Apple has filed lawsuits against unnamed information leakers, as the company is known to be secretive about its forthcoming products.

The judge in the circuit court case, Judge James Kleinberg, finally ruled that the blog publishers disclosed trade secrets, without permission, which resulted in a court order that the bloggers must reveal their anonymous sources.

First Amendment

The ruling hung on First Amendment protections afforded to all, and shield laws which specifically protect journalists and their secret sources.

The judge, in his written opinion, decreed that "an interested public is not the same as the public interest." Trade secrets were violated -- and that, he said, trumped free speech protections.

The EFF balked at that ruling, and took the appeals case, arguing in a brief that the decision's "sweeping terms threaten all journalists, whether publishing in print, radio, television, or on the Internet."

The Electronic Frontier Foundation, along with co-counsel Thomas Moore III and Richard Wiebe, is representing the online journalists to protect their anonymous sources, said EFF spokeswoman Rebecca Jeschke.

The civil rights group opposes Apple's discovery because the confidentiality of the media's sources and unpublished information are critical means for journalists of all stripes to acquire information and communicate it to the public. Because today's online journalists frequently depend on confidential sources to gather material, their ability to promise confidentiality is essential to maintaining the strength of independent media. Furthermore, the protections required by the First Amendment are necessary regardless of whether the journalist uses a third party for communications.

The Electronic Frontier Foundation said it wanted to "correct the trial court's manifest error and restore the previously well-settled constitutional protections for a journalist's confidential information, upon which the practice of journalism and the freedom of the press depend."

Companies like Intel (Nasdaq: INTC) and organizations like the Business Software Alliance have filed briefs in support of Apple, however, in the case. The appeal is set for hearing this Thursday. Apple declined to return several phone calls made for comment regarding this case.

Disclosure of trade secrets via a blog is usually a worry that companies have about blogs run by their own employees -- not outside journalists, blogging expert Ted Demopoulos, co-author of Blogging for Business, told MacNewsWorld. "In that sense, it is unusual that Apple went to court over this," said Demopolous, who also runs a blog of his own.