updated 09:35 pm EDT, Tue September 13, 2005
Apple vs. Does
The Electronic Frontier Foundation (EFF) last week won the right to unseal court documents related to Apple's efforts to subpoena the sources of online journalists. The documents, previously sealed by the Court and unavailable to the journalists and their attorneys, show that Apple moved to subpoena the reporters' sources before conducting a thorough investigation within the company. The ruling is the latest in a series of Court battles in the Apple vs. Does over protecting the confidential sources of journalists and bloggers. Last December, Apple moved to subpoena sources from AppleInsider and The PowerPage, following the sites' publication of an unannounced audio interface, code named "Asteroid." The product never surfaced, however, Apple still claimed protection under trade secret law.
Earlier this year, the EFF was unsuccessful in a ; however, EFF said that the newest rulling would help them in their fight to protect the reporters' sources because the law requires that Apple exhaust all other sources before turning to a Court-issued subpoena for information from a journalist. After the sites printed articles about "Asteroid, Apple claimed violation of trade secret law and and moved directly to subpoena the journalists' sources.
"This is a crucial issue in the case, which will be heard by the California Court of Appeal, because the First Amendment and the California Constitution require that Apple exhaust all other alternatives before trying to subpoena journalists. The unsealed documents, filed late last week, allow the public to see that Apple failed to conduct an exhaustive investigation. It never took depositions, never issued subpoenas (other than to the journalists), and never asked for signed declarations or information under oath from its own employees."
Apple also claimed that its internal investigation was itself a trade secret and argued that it should sealed from opposing counsel; however, the EFF and co-counsel successfully argued and won a Court ruling that made the documents public. According to the documents, the only computer forensics conducted by Apple was a search of Apple's email servers and a "rudimentary examination of a single file server."
The documents also showed that Apple did not examine employees' individual work computers or other devices capable of storing or transmitting electronic information, examine any telephone records, look at copy machines, or otherwise investigate the possibility that information about 'Asteroid' was transmitted by means other than email. The EFF also notes that Apple did not even obtain sworn statements from employees who had access to the leaked "Asteroid" specs.
"The First Amendment requires that compelled disclosure from journalists be a last resort," said EFF Staff Attorney Kurt Opsahl. "Apple must first investigate its own house before seeking to disturb the freedom of the press."
A California Superior Court ruled earlier this year that the subpoenas could be issued, both to the journalists' email providers as well as to the publishers of the websites themselves. After the journalists appealed, the California Court of Appeal ordered Apple to show cause as to why the journalist's petition should not be granted. No date is set yet for the hearing in the Court of Appeal.