updated 03:45 pm EDT, Thu April 20, 2006
Apple faces questions
Apple's quest to discover the indentity of a journalist source took an important step today as a three-judge appeals panel in the State of California Court of Appeal, Sixth Appellate District, heard oral arguments from each side. Apple appeared to face the brunt of the Court's questioning, who hinted that at the very least it may remand the case to lower court for reconsideration, according to CNET News.com. The judges questioned Apple's investigation as well as its classification of the unreleased Asteroid product--a FireWire breakout box--as a trade secret, asking Apple lawyers rhetorically if they believed it was worthy of trade secret status. "You don't really claim this is a new technology?" the presiding judge, Conrad Rushing, asked Apple's lawyer. "This is plugging a guitar into a computer."
The case threatens to undermine journalists' ability to protect their confidential sources, as Apple tries to use the courts to help it uncover the identity of the individual who leaked production information to both AppleInsider and enthusiast site PowerPage.org--although Apple argues that neither qualify as legitimate members of the press.
The Electronic Frontier Foundation (EFF), who helped argue the case for PowerPage.org, said that "It sounds like the court understood the important issues at stake here." Although it is not clear when the Court will hand down a decision ("within the next 90 days"), the stakes remain high for all journalists who seek to protect their sources and for bloggers who look for constitutional protections as members of the press. The EFF is hoping the Court of Appeals will reverse a lower court ruling that refused to overturn Apple's subpoena to the PowerPage's ISP for information that would help reveal the blogger and journalist's source.
Much of the arguments centered around whether Apple conducted an exhaustive internal investigation and whether it was merely using the legal system as a means to avoid its own due diligence. Under California law, Apple can only subpoena journalists' sources if it has exhausted all other avenues. After the sites printed articles about "Asteroid," Apple claimed violation of trade secret law, conducted a rudimentary investigation, sued the mystery "John Doe" who leaked the information, and moved to subpoena the journalists' sources.
The Judges questioned whether Apple's investigation was, indeed, thorough enough. According to the report, Apple said it has examined several internal server logs and questioned the 25 employees who had access to the information, but did not question the workers under oath--something it maintains it should not need to do. The investigation appeared to be anything but exhaustive, as one Judge questioned the company's efforts, telling Apple it was only saying to its employees, "If you disclosed the information, you'll be fired. Did you disclose the information?"
Another judge went so far as to mock a brief filed on behalf of Apple by a local biotechnology firm: Genentech argued that merely questioning employees represented too much of a burden to Apple, according to the report. And after recess, one judge said that Apple is merely using the courts to find a snitch. When Apple's council George Riley disagreed by saying Apple was looking for somebody who commited a crime, the judge responded: "You shouldn't hire people you think are going to be (a) criminal."
Separately, Apple has sued another Mac enthusiast site Think Secret, alleging that postings on the site contain Apple trade secrets and is awaiting a decision in the case against The Beatles' recording company over the use of its logo.