Reporters Committee files brief supporting journalists subpoenaed by Apple over marketing plans

The Reporters Committee for Freedom of the Press, joined by eleven other news media organizations, has filed a friend-of-the-court brief in the California Court of Appeals in a case that involves an attempt to circumvent protections from the disclosure of journalists’ confidential sources by seeking e-mail records from an Internet service provider.

The case, O’Grady v. Superior Court, is an appeal from an order in Apple Computer v. Doe. After news of a yet-to-be-announced Apple Computer product showed up on a number of Websites devoted to Apple, Apple sued 25 unnamed individuals, presumably its own employees, for leaking the information to the sites in violation of California’s trade secret laws. Apple conducted an internal investigation of the approximately 30 employees it believed to have access to the information, but did not question any under oath before looking to the Websites for the source of the leak.

Judge James Kleinberg of the Superior Court in San Jose, Calif., ordered the Internet service provider of one of the sites to provide e-mail records identifying the source or sources, and the Website operators attempted to intervene and claim the protections of the California reporter’s shield law and the First Amendment.

Although the case has garnered significant attention over the issue of whether the Website operators are journalists, Kleinberg brushed that question aside, ruling that “Whether he fits the definition of a journalist, reporter, blogger, or anything else need not be decided at this juncture” because “there is no license conferred on anyone to violate valid criminal laws” such as the trade secret statutes.

The Reporters Committee argued in the brief that “Allowing journalists’ confidential sources to be disclosed by subpoenaing third-party service providers, especially where there has been no showing that the information is not adequately available from other sources, would substantially impair journalists’ ability to gather and report the news by deterring future sources from coming forward and turning journalists into — or at least creating a perception that they are — unwilling investigators for the government and other litigants.”

“Punishing journalists who did not illegally obtain access to trade secrets for publishing information on a matter of public interest would impair the news media’s ability to report on the activities of corporations and other businesses,” said Reporters Committee Executive Director Lucy Dalglish. “If this case is not reversed, we will see a restriction in the flow of information to the public; and the public’s ability to make informed choices related to government, industry, health and a host of other subjects that affect people’s everyday lives will be damaged.”

Joining the Reporters Committee on the brief was the Associated Press, The California First Amendment Coalition, The California Newspaper Publishers Association, The Copley Press (publisher of The San Diego Union Tribune), Freedom Communications, Inc. (Publisher of The Orange County Register), The Hearst Corporation (publisher of The San Francisco Chronicle), the Los Angeles Times, The McClatchy Company (publisher of The Sacramento Bee), the San Jose Mercury News, the Society of Professional Journalists, and The Student Press Law Center.

The brief can be viewed online at: www.rcfp.org/news/documents/20050411-amicusbrie.html