In a case that could have broad implications for journalists everywhere, Apple argued yesterday that its subpoena of the ISP of an online news website should be allowed to go forward.
Are journalists protected by the First Amendment?
Apple sued several unnamed individuals, referred to in court proceedings as 'Does', for leaking information about an upcoming product code-named Asteroid to PowerPage. To discover the identities of the Does, Apple also subpoenaed PowerPage publisher Jason O'Grady's ISP, Nfox, demanding that it turn over communications and unpublished materials relating to the leak so as to reveal his sources.
The trial court ruled that when a journalist publishes information a company claims to be a trade secret, this nullifies any constitutional protections for the confidential sources.
The case has raised issues of what, exactly, constitutes a journalist, and whether or not a company's right to protect its trade secrets outweigh First Amendment protections.
Before Thursday's appeal, it was expected that most of the case would focus on whether or not PowerPage and similar sites, such as AppleInsider, were indeed entitled to protections afforded journalists under California and US law. However, Thursday's appeal focused primarily on whether or not Apple has met the standard of the 'Mitchell test' (a reference to the 1984 case that helped establish under what circumstances a journalist could be compelled to reveal confidential source information), California's journalism shield law, and the SCA (Stored Communications Act).
Representing O'Grady, EFF (Electronic Frontier Foundation) lawyer Kurt Opsahl vigorously argued that it made no difference under the SCA whether or not the information published represented a trade secret. Opsahl also contended that Apple's claim failed to meet the standards of the Mitchell test, as the company had not conducted an exhaustive internal investigation before demanding that O'Grady reveal his sources.
Though Apple interviewed all 25 of its employees who had access to the Asteroid files and conducted forensic investigations of its network and their computers, it did not actually depose any of them under oath, which would expose them to charges of perjury. This, claimed Opsahl, meant that the company had not yet exhausted its internal investigation options. The exhaustion standard must be met, he argued, "so that we know journalists are not being asked to be the investigative arm of litigation".
Apple argued that it had conducted an exhaustive search and that, because of the nature of the trade secrets, PowerPage had no right to First Amendment protections.
"When you are talking about the wholesale theft of trade secrets," argued George Riley for Apple, "there is no First Amendment protection."
Riley cited several cases to bolster his argument, but at least one of the three justices hearing the case did not seem inclined to agree. Judge Franklin Elia repeatedly – and sometimes belligerently – probed Riley on the issue. "The cases you're citing have nothing to do with this case," said Elia.
Noting that Apple had neither subjected its employees to a lie-detector test, nor had them deposed under oath in order to find the guilty party, Elia also speculated as to the court's role in the case.
"All you want is the name of the – excuse me – the snitch," said Elia. "We are not here to be the super personnel committee for your company."
The case also focused on the nature of trade secrets. In response to presiding Judge Conrad Rushing's query as to whether or not all trade secrets are "created equal", Dan Bagadell, who joined Apple in the case representing Intel, told the court: "Trade secrets of unannounced products are some of the most important in Silicon Valley."
Elia also expressed reservations about Bagadell's arguments, asking him why the court should intervene in personnel matters, or set aside First Amendment protections for Apple's interest. When Bagadell replied that Apple did recognise First Amendment rights, Elia countered this, stating: "I know they recognise it, but then they discard it in the interest of making another machine."
Another issue raised was the nature of the communication medium – email – used to transmit the secrets. Opsahl argued that Congress had expressly set up protections for email records via the SCA. Journalists should not have to sacrifice their rights to a third-party service provider to "enjoy the benefits of the modern era", he claimed.
Elia quizzed Riley on the issue, asking why email messages should be any different from telephone conversations, the contents of which would not be available to be subpoenaed. Treating the two differently, he stated, would go against the intentions of Congress. "Congress felt this would be a disaster," he said.
In his closing arguments, Riley returned to this theme that ultimately the issue was one of theft, and Apple's available legal remedies to protect its property.
"The First Amendment is not a shield for illegal conduct by journalists, or journalists' sources," Riley said.
The court will issue a ruling within 90 days.
This story first appeared on Macworld.com.