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