EFF files appeal against Apple Web site subpoena

As expected, the Electronic Frontier Foundation (EFF) has filed an appeal in a case that pits Apple against Web sites reporting on Apple products.

Earlier this month a California Superior Court judge ruled in favor of Apple after the company filed a subpoena requesting records from Nfox, Internet service provider for Mac news site PowerPage. PowerPage has published information about an as-yet unannounced Apple product code-named "Asteroid," and Apple wants to know who told PowerPage about the device. Apple hopes that by securing information from Nfox, which provides e-mail service to PowerPage, they will learn who told PowerPage about the product.

This ruling and the proceedings surrounding this case have generated controversy because the EFF claims that the writers of these online sites it represents -- PowerPage and AppleInsider -- are journalists and therefore are protected by both the First Amendment and California's "shield law" which allows journalists to protect their confidential sources. Apple countered that the sites have revealed trade secrets and aren't entitled to invoke either the First Amendment or California's shield law to protect themselves.

In issuing his ruling on March 11, 2005, California Superior Court Judge James P. Kleinberg allowed Apple's subpoena to Nfox to proceed, though he largely skirted the broader questions regarding freedom of the press.

"What underlies this decision is the publishing of information that at this early stage of the litigation fits squarely within the definition of trade secret," Kleinberg wrote. "The right to keep and maintain proprietary information as such is a right which the California legislature and courts have long affirmed and which is essential to the future of technology and innovation generally. The court sees no reason to abandon that right even if it were to assume, arguendo , movants are 'journalists' as they claim they are."

"... the First Amendment cannot be so easily waived," said the EFF in a statement following its filing of an appeal on Tuesday. The organization suggests that Apple has not yet done "an exhaustive search elsewhere" to find the information it seeks, and that Apple must demonstrate it has done so before it can expect Nfox to turn over any information.

"The Superior Court's ruling exalted statutory trade secret protection over constitutional rights, misapplied the test for when the constitutional reporter's privilege may be overcome, and ignored the Stored Communications Act altogether," said EFF staff attorney Kevin Bankston. Bankston's statement refers to federal legislation enacted in 1986. The Stored Communications Act (SCA) is a federal law which protects the privacy of, among other things, e-mail stored by Internet Service Providers (ISPs).

Apple was not available for comment when MacCentral posted this article, but the company routinely does not comment on issues related to pending litigation.

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