Apple squeezes bloggers

Who said apples don't bite back?

In another setback for free speech as the 6th estate, online journalism, struggles for recognition, a judge in the Apple v. 1st Amendment and free speech rights of all journalists suit ruled today that an internet service provider can be forced to give up documents that reveal the identities of a journalist's confidential sources if the information given to the journalist could be a trade secret.

Santa Clara County Superior Court Judge James Kleinberg has ordered defendant bloggers Monish Bhatia, Jason O'Grady and Kasper Jade to disclose the names of confidential sources but they have thus far refused. If the bloggers continue to refuse to disclose their confidential sources they could be held in contempt of court and jailed.

At the core of the suit, the bloggers, who write for ether pubs AppleInsider and O'Grady's PowerPage, received tips on unannounced Apple products and published the information before Apple could arrange its own dog and pony show on the new products. Apple was unhappy about this. It wanted to control the announcement. Instead of pouting like any normal corporation with its nose out of joint, Apple gathered its high-priced lawyers, opened its deep pockets and sued the small publications and their bloggers seeking the best justice money could buy.

Apple alleges the information was a trade secret, was furnished by persons inside the company who had signed a non-disclosure agreement, and claimed therefore the bloggers helped the sources break their NDAs and, in doing so, the law. The defendants, who are represented by non-profit digital rights group Electronic Freedom Foundation, argued that the information was freely available from a number of sources, was not a trade secret and did not harm Apple.

Moreover, the defendants argued, bloggers are journalists protected under California's shield law and the free press provisions of the First Amendment to the U. S. Constitution and any judicial move to force them to disclose their sources would have a chilling effect on journalists who seek to report news in the public interest. The bloggers also say Apple is using its monetary and legal muscle to beat them up in the courts and would not have filed a suit against larger, more well-funded publications.

According to the EFF, the court did not restrict its ruling to online journalists, instead deciding that all journalists could be required to reveal confidential sources when a claim of trade secret is raised.

The EFF said it will appeal the decision. One course of appeal might be if any of the bloggers owned shares in Apple. As such, if they receive previously unpublished information that could have an impact on the price of Apple stock, they would have a duty to disclose that information to the public before trading in the shares. This law is contained in 17 C.F.R. 204.10b-5

A separate suit has been filed by Apple against blog Think Secret seeking the same information. There has been no ruling in that case yet.