Saying reporters who print “stolen property” are not entitled to legal protection, a Santa Clara County judge has held that three Internet writers may have to give up where they got what Apple Computer considers company trade secrets.
Apple has said the leaked product information in question broke nondisclosure agreements and California’s Uniform Trade Secrets Act and, in addition to demanding the three writer-publishers identify their sources for the information, sued a reported 25 company workers Apple suspects may have divulged the information.
Apple sued those workers in December and also demanded the three writers—Monish Bhatia, Jason O’Grady, and Kasper Jade—give up their sources, after their articles about an Apple product code named Asteroid appeared in online publications Apple Insider and PowerPage.com.
Apple praised the ruling as upholding its opinion that there is no right or license to “violate valid criminal laws,” while the threesome plans to appeal the ruling. "This opinion should be concerning to reporters of all stripes,” said Electronic Frontier Foundation attorney Kurt Opsahl, who represented them, “especially those who report in the financial or trade press and are routinely reporting about companies and their products.”
Apple had said in an earlier court hearing that Bhatia, O’Grady, and Jade weren’t journalists but people who published product releases and other information with little analysis or proper journalistic context, as one published report described it.
Judge James Kleinberg said the decision had to do with publishing information that fit “squarely within the definition of trade secret. 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.
"The journalist's privilege is not absolute," Kleinberg added. "For example, journalists cannot refuse to disclose information when it relates to a crime." The judged also made a point of saying his ruling was not because the trio wrote for comparatively obscure Websites but because they broke trade secret law. “(E)ven if (they) are journalists,” he wrote, “this is not the equivalent of a free pass.”
That’s not quite the way the EFF sees 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 Opsahl. "Instead, the court asserts a wholesale exception to the journalist's privilege when the information is alleged to be a trade secret."
EFF legal director Cindy Cohn went a little further. “This,” she said in her own statement, “is a broad-brush ruling that threatens journalists of all striped.”
"The case highlights the question of whether bloggers enjoy the same rights as members of the traditional media,” said CNET.com. “It also takes its place as part of a feud over the growing role of blogs in the way news is covered and consumed. Kleinberg skirted this issue entirely and instead ruled in Apple's favor on the assumption that its interests in protecting trade secrets outweigh the public interest in the information.”
California First Amendment Coalition executive director Peter Scheer said the Kleinberg ruling could cripple effective news media. “Under (his) logic, if the Wall Street Journal ran a story about (the Asteroid documents), it could be prosecuted criminally,” he told reporters. “That’s an absurd result.”
