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In coming weeks California state judges will weigh in on two lawsuits filed by Apple Computer. The subject matter"Asteroid," "Q97," "schematics and renderings"sounds pretty obscure. But the principle at stake is no less than "the question of whether online journalists deserve the same protection as print journalists," says attorney Kurt Opsahl of the Electronic Frontier Foundation. What the Pentagon Papers were for the main- stream press, Apple v. Does and Apple v. dePlume might be for independent websites.
Opsahl represents the websites AppleInsider and PowerPage; a third site, Think Secret, is also targeted by Apple. All three sites track every move Steve Jobs's company makes with the sort of devotionor, in Opsahl's phrase, "fanaticism"that Apple inspires in its fans. Recent postings on the sites bear jazzy titles like "Casio Exilim EX-Z55 SD Media Issues II" and "Apple Seeds Tiger Server A8297."
In November, Apple claims, all three sites posted information about Asteroid or Q97, purportedly an unreleased Apple device that allows the user to plug instruments into a computer for mixing sound. Apple accuses Think Secret of revealing a host of trade secrets.
Apple argues that those disclosures violated California law. In one case, Apple has sued 25 unidentified "Does" for passing trade secrets about Asteroid to all three websites. Apple says that if rivals learn about products under development, they could get an edge by "directing their product development or marketing to frustrate Apple's plans." The company has even redacted the product name from some court filings.
In a second suit targeting only Think Secret, Apple accuses the site of trade secret misappropriation. The defendant is Nick dePlume, the nom de plume of Think Secret's editor.
In the first case, which is further along, the court has granted Apple the right to subpoena AppleInsider, PowerPage, and Think Secret for "documents identifying any individual . . . who provided information relating to the product." Apple also wants documents that "will identify individuals who may have knowledge regarding the source," including people who help run the sites. For PowerPage, this includes a person with the handle "Dr. Teeth and the Electric Mayhem."
Opsahl will try to block Apple's document dig, citing "reporter's privilege"the same legal shield that reporters Judith Miller and Matthew Cooper are hoping will keep them out of jail for not revealing the name of their sources in the Valerie Plame case. "It is extremely important to the free flow of information that reporters are able to promise confidentiality to sources that provide information for news stories," Opsahl says.
But are AppleInsider, PowerPage, and Think Secret really reporting the news, or are they merely blogs? All three websites targeted by Apple have editorial staff, but also solicit tips from readers. PowerPage even invites visitors to "Get Published." That sounds bloggish. But the distinction doesn't matter, says UCLA law professor and blogger Eugene Volokh, who feels blogs "ought to be protected too, partly because I think that inherently the speech of individuals is valuable as well as the speech of institutions." And in fact, he notes, blogs "play an important role in critiquing institutions," including the professional media.
Not all blogs do that, however. "If I have a blog about how much I love my kitties, and suddenly I say, 'By the way, I saw this guy kill another guyand I like kitties,' am I a journalist?" asks Curt Hopkins, a founder of the Committee to Protect Bloggers. "Probably not."
So for a court to give a website reporter's privilege (which has not been applied universally even to traditional media), it must identify whether a site or weblog is actually engaged in journalism. In the Think Secret case, a separate issue is raised. Terry Gross, of the San Francisco firm Gross & Bellsky, who is representing Think Secret pro bono, says the idea that a reporter breaking news can be considered stealing trade secrets is outrageous. "It's basically suing the journalist for publishing information that the journalist obtains lawfully through sources."
Some of the issues at play in the two Apple cases could affect traditional journalists as well as web reporters. In the Does case, Apple has asked companies that handle e-mail and web hosting for PowerPage to turn over documents that might establish who leaked the Asteroid information, as well as copies of any e-mail messages and attached drawings or sketches concerning that product.
That raises the question of whether the reporter's privilege applies to information held by a third party. Since a lot of reporters use free e-mail accounts like Hotmail to talk with sources, those accounts must also be protected from subpoenas, Opsahl says, or "it would make the reporter's privilege meaningless."
Asked for comment, Apple supplied only this statement: "Apple has filed a civil complaint against unnamed individuals who we believe stole our trade secrets and posted detailed information about an unannounced Apple product on the Internet. Apple's DNA is innovation, and the protection of our trade secrets is crucial to our success."
Gross sees another motivation at work. "I think what the Apple lawsuit against Think Secret really is, is an attempt to intimidate small journalists," pointing out that had he not agreed to represent Think Secret, the site's editor19-year-old Harvard student Nicholas Ciarellimight have folded his site rather than go to court.
With the websites contesting Apple's claims, the case could be a landmark. But it could also leave most bloggers' legal doubts unresolved. "People are still feeling their way on this issue," says Rebecca MacKinnon, a former CNN correspondent turned blog scholar. She feels courts will probably have to decide on a case-by-case basis whether blogging is journalism or just a hobby.
That uncertainty might not faze intrepid bloggers, but it could chill the people who give them scoops. "So long as it's uncertain whether there's a journalist privilege for bloggers," says Volokh, "you could imagine sources not wanting to talk to bloggers."