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EFF appeals protective order ruling against PowerPage

updated 10:30 pm EST, Tue March 22, 2005

PowerPage appeal

On behalf of online journalists, the Electronic Frontier Foundation (EFF) has filed an appeal, hoping that Courts will "correct their ruling" and afford online journalists the same protections as traditional journalists. In an appeal filed today in the California state court system, the EFF has asked the Court to consider the ramifcations of ruling that would begin to erode the rights of online journalists and may have a "chilling effect" on all media. Earlier this month, a California Court to prevent Apple from subpoenaing confidential information about PowerPage sources from its internet service provider (ISP) because the information was "stolen property."

The forthcoming ruling may have a broad impact on online journalism, if the court does not "correct" a lower court ruling, according to the EFF. If the Court rules that PowerPage's Jason O'Grady is indeed a journalist, but is not deserving of the First Amendment or California's Reporter Shield Law protection, the impact of such a ruling could extend to traditional journalists and silience "public interest whistleblowers." The lower Court said that it was not able to grant the protective order because PowerPage's information violated nondisclosure agreements and California's Uniform Trade Secrets Act.



"The California courts have a long history of supporting and protecting the freedom of the press," said Kurt Opsahl of the EFF: "The Court of Appeal will now get the opportunity to correct a ruling that endangers all journalists."



In December of last year, Apple received permission from the Court to subpoena information from several websites about their confidential sources. Apple sought this information in an effort to name the defendants ("John Does") in its civil lawsuit against 25 unnamed indviduals for breaking confidentiality and non-disclosure agreements. Apple said it has been unsuccessful in obtaining the identity of these indivdiuals through an internal investigation; however, in its appeal, the EFF argues that Apple has not performed its due diligence and has not exhausted all its options, including taking sworn statements or hiring an external investigative team. Case law supports the notion that other options be exhausted before turning to journalists for information on their confidential sources.



Apple has focused its attention on subpoenaing information from the PowerPage, dropping its quest for reporters' sources from other sites, including AppleInsider. Subpoenas against other sites were initially granted, but never served and expired in February. Only a single outstanding subpoena for email records from the PowerPage's ISP Nfox remains. The EFF is appealing the previous ruling against the protective order in order to prevent Apple from serving its subponea on the PowerPage's ISP.




by MacNN Staff

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Comments

  1. jmonty12

    Joined: Dec 1969

    0

    EFF is wrong too.

    Hmmm. Never thought I'd be against the EFF, but they're plain wrong. They're worried about silencing "public interest whistleblowers"? What a crock. No whistleblowers in this case. It's not like Apple was working on something unsafe or illegal. There is no reason the ruling here has to erode true whistleblower protections.

  1. Jonathan-Tanya

    Joined: Dec 1969

    0

    EFF is an important group

    EFF knows what they are talking about. If you look at whistleblowers, they are few and far between. People are already very scared. How many decades before a single person came forth about big tobacco? DECADES....

    If you have to have a lawyer to figure out if its OK to come forward...it won't happen. It already barely happens.... even if this case isn't about whistleblowing, it is about freedom of press. If people don't believe journalists have any degree of confidentiality, ...or only can be confidential if a particular ruling comes down froma particular judge on a particular day...forget about whisteblowing.

    not every case is the perfect case to showcase why freedom of press is important...but freedom of press is important. I wish we weren't so eager to forget that.

  1. Jonathan-Tanya

    Joined: Dec 1969

    0

    why I don't boycott appl

    you'll notice as much as apple has made an arse of themselves I don't hear anyone talking boycott.

    one reason, i still think its useful for apple to break up the windows monopoly...I also support linux in that respect. Greater choice will be a good thing for society.

    But apple has offended a lot of people, and its not great for business... they should start thinking about the bottom line. In they end, they make money by selling computers, not by suing teenagers.

    And I don't believe for one second any of these rumor sites hurt sales...there are all kinds of rumor sites around windows, xbox, video games, and rather than trying to sue them out of existence, those companies use marketing savvy to put the sites to create buzz and work for their own benefit.

  1. MichaelNH

    Joined: Dec 1969

    0

    dumb.....

    suing teenagers... ummm dumb. He had access to trade secrets... he lured people to his webpage.. which he gains profit from with all the ads... teenager or not... I'm pretty sure he knew he was posting stuff he shouldn't have been... people "guessing" on what is coming out is fine. but when someone breaks their NDA and the person he is breaking his contract with is gaining financially from that info... journalist... HA! come on now

  1. just a poster

    Joined: Dec 1969

    0

    i like free speech

    it's the ignorant press i can't tolerate.

  1. VValdo

    Joined: Dec 1969

    0

    who is the "press"

    I think one of the great things about having a free press in America is that there is no governmental or other type of "certification" of who the press is. If you report the news, you're "press". It shouldn't matter if you have a degree or went through an apprenticeship or have a huge readership or whatever. Having the government "bless" only certain reporters or mediums as legitimate and thus entitled to unique rights is a scary thought.

    Bloggers who do legitimate reporting are just as much "press" as anyone, providing they are making a sincere effort to report the truth.

    That's just my 2c. I know you were all wondering.

    W

  1. Sebastien

    Joined: Dec 1969

    0

    Oh please!

    The rumor sites 'journalists' (although I'd be furious if I was a real journalist and heard these law-breaking bloggers call themselves that) are certainly NOT "public interest whistleblowers". No public interest is being served by divulging trade secrets. As the judge had said, public interest ins't the same as an interested public.

    Wish people would make the difference for once.

  1. Sebastien

    Joined: Dec 1969

    0

    Btw, people:

    Freedom of the press != freedom to break the law.

  1. Sebastien

    Joined: Dec 1969

    0

    Re:why I don't boycott a

    'they should start thinking about the bottom line"

    They are; trade secrets being illegally revealed can and probably will hid their bottom line.

  1. ZinkDifferent

    Joined: Dec 1969

    0

    It's not about journalis

    In act, it appears the EFF has failed to even read the ruling, as it was specifically stating that it's not about joiurnalists, and in no way endorsed, or denied, O'Grady or DePlume's classification as journalists.

    Of course, the EFF (and the two defendants) are clinging to this, and are hoping that the appeals court will somehow legitimize them as journalists in their ruling. My guess is that appeals court will see no merit in the appeal.

    As it should.

    ZinkDifferent

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