Published in Pop + Politics dot com, April 05, 2005

The recent lawsuit brought by Apple seeking to compel PowerPage and AppleInsider to reveal the sources of published materials about yet-to-be-released Apple products was not a surprise since Apple is a company known for its secrecy. When PowerPage and AppleInsider posted speculation about Apple’s forthcoming audio interface (code named Asteroid) for their Garageband program, you knew Apple lawyers were keen to find who had leaked the information.

Apple turned toward the courts, asking them to force PowerPage and AppleInsider to reveal their sources. AppleInsider and PowerPage refused, citing California shield laws, which protect journalists from revealing their sources.

What many thought would be a landmark case concerning the definition of journalists and the protections afforded bloggers and websites under these shield laws instead turned into a case that spotlighted the rights granted to companies with regard to trade secrets.

The battle to balance trade secret protections and First Amendment rights of publishers is not new. Most recently, Andrew Bunner was one of hundreds who published DeCSS, a decryption program designed by Jon Johansen to bypass the Copyright Scramble System used to protect DVD movies, and was sued by the DVD Copy Control Association (CCA). They charged Bunner and 520 others with trade secret misappropriation. The DeCSS case, which was won on First Amendment grounds by Bunner and 520 others (Does) illustrated an important point regarding free speech.

The court believed that a trade secret held by a company was not an interest “more fundamental” than the First Amendment right of an individual. Bunner was a journalist and had not solicited the information concerning DeCSS illegally. Rather, he was republishing something he had found as public information on the Internet. The CCA then, were over stepping their bounds by attacking a fundamental right afforded by the Constitution to protect their business interests under the guise of trade secrets. The court went further and regarded the value of trade secrets not even on the same step as national security or other vital interests that might otherwise trump free speech rights.

Given the precedent set by the courts in the Bunner case, the Apple v. Does ruling is surprising. It's the language of the decision by Santa Clara County Judge James Kleinberg, however, that is frightening. Judge Kleinberg writes:

"Based on [the language of the shield law] and the facts presented, it is far from clear that Mr. O'Grady qualifies for relief from the subpoena on the grounds advanced. Whether he fits the definition of a journalist, reporter, blogger, or anything else need not be decided at this juncture for this fundamental reason: there is no license conferred on anyone to violate criminal laws."

Judge Kleinberg surprisingly based his ruling specifically on the nature of the published material -- if you publish or leak a trade secret, you could be considered a criminal.

With a history of restricted speech burned into their memories, the drafters of the Constitution and Bill of Rights specifically wrote about the need for freedom of speech and a free press. EFF, the lawyers representing PowerPage and AppleInsider quote James Madison: "A popular government without popular information or the means of acquiring it is but a prologue to a farce or tragedy or perhaps both."

Did PowerPage and AppleInsider violate the law? Imagine if a website or newspaper published information about the addictive nature of nicotine, which was known yet hidden by major cigarette companies. The cigarette companies then forced the publishers, citing the Apple v. Does ruling as precedent, to reveal the source of the leaked information proclaiming that the pertinent documents, which were clearly marked “Confidential,” were in fact trade secrets. Would the creators of the Truth public service announcements on television have the fortitude to create the campaign if they knew they would be sued?

While the argument can and will be made that information pertaining to the pre-release of Apple products would not threaten a life, it is the broad-brush nature of the ruling that is so troubling. Judge Kleinberg’s ruling gives companies the power to determine which information falls under the umbrella of trade secrets, and thus making that information immune from First Amendment considerations. Moreover, it creates a chilling effect on investigative reporting that would seriously hinder, if not cripple, the ability of journalists to obtain sensitive information, whether in the public interest or for public knowledge. I doubt many whistleblowers or informants would be willing to step forward if their identity was guaranteed to be revealed.

We are entering a world where due to the Internet, anyone may become a journalist. We give these journalists the protections of the First Amendment under the assumption that we “place responsibility on a speaker or publisher to weigh the consequences of possible civil or criminal liability for wrongful speech or publication and to trust that rational assessments of risk will generally deter illegal speech and publication.”

We should not, however, give companies the right to determine what may or may not be published if what is published is truthful. This is exactly what Judge Kleinberg’s ruling has done. Where we go from here is scary.