The Scientific Activist (Archives)


May 29, 2006

Blogosphere – 1, Apple – 0

On Friday, May 26th, the California 6th District Court of Appeal, in its ruling on Apple v. Does, issued a protective order preventing Apple from seeking the identities of those who had leaked what Apple called confidential information about upcoming products. In doing so, the court extended to the blogosphere the basic First Amendment freedom of speech protections that have long been available to the traditional media. Although Judge James P. Kleinberg had originally ruled in Apple’s favor on March 11, 2005, the new unanimous decision by a three judge panel effectively overturned Judge Kleinberg’s earlier decision:

The full ruling can be found here, but in short:
Apple Computer, Inc. (Apple), a manufacturer of computer hardware and software, brought this action alleging that persons unknown caused the wrongful publication on the World Wide Web of Apple’s secret plans to release a device that would facilitate the creation of digital live sound recordings on Apple computers. In an effort to identify the source of the disclosures, Apple sought and obtained authority to issue civil subpoenas to the publishers of the Web sites where the information appeared and to the email service provider for one of the publishers. The publishers moved for a protective order to prevent any such discovery. The trial court denied the motion on the ground that the publishers had involved themselves in the unlawful misappropriation of a trade secret. We hold that this was error because (1) the subpoena to the email service provider cannot be enforced consistent with the plain terms of the federal Stored Communications Act (18 U.S.C. §§ 2701-2712); (2) any subpoenas seeking unpublished information from petitioners would be unenforceable through contempt proceedings in light of the California reporter’s shield (Cal. Const., art. I, § 2, subd (b); Evid. Code, § 1070); and (3) discovery of petitioners’ sources is also barred on this record by the conditional constitutional privilege against compulsory disclosure of confidential sources (see Mitchell v. Superior Court (1984) 37 Cal.3d 268 (Mitchell)). Accordingly, we will issue a writ of mandate directing the trial court to grant the motion for a protective order.

Although several organizations filed briefs in favor of the bloggers, only a few supported Apple. Interestingly, this included one of our favorite drug companies here at The Scientific Activist, Genentech.

Although the results of this decision only officially apply to California, it should be relevant to the rest of the nation, as journalists in general find themselves in an environment increasingly hostile to confidentiality. This includes a recent statement by Attorney General Alberto Gonzales that journalists can now be prosecuted for releasing classified information. Regardless, the current decision was decided correctly and is a major victory for bloggers in general.


  • Thank you, Nick! What a terrific post. I am linking to OOTJ because this is important news for legal bloggers. Good for you! And Happy 100th post. Congratulations!

    By Blogger Betsy McKenzie, at Tue May 30, 03:53:00 PM  

  • I agree that this is pretty interesting. I was surprised that there was not a lot of media coverage and that I didn't find out about it until after the fact (part of that was probably due to my internet service being down all weekend).

    By Blogger Nick Anthis, at Tue May 30, 04:43:00 PM  

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