In an important decision for bloggers' rights, the 6th District Court of Appeals has ruled in the case of O'Grady vs. Apple Computer. In their unanimous ruling the judges declared that bloggers are essentially indistinguishable from traditional journalists and enjoy the same legal protections.
This case originated with Apple Computer's efforts to track down employees who leaked information about software development projects to bloggers at AppleInsider, PowerPage and other sites. Apple attempted to use their deep pockets and the court system to force the bloggers to reveal their sources. The Electronic Frontier Foundation came to the defense of the sites that were under attack, and have pursued the issue on a pro bono basis through an initial ruling in favor of Apple in early 2005 to this ultimate ruling supporting the rights of bloggers.
In the course of the suit Apple attempted to subpoena Nfox.com, the email service provider for PowerPage, as well as two other similar services for email messages that might have revealed the bloggers' source at Apple. The privacy of these communications became a central element of the case, with the EFF making an argument in favor of the essential right of privacy for the sources used by bloggers:
"The confidentiality of the media's sources and unpublished information are critical means for journalists of all stripes to acquire information and communicate it to the public. Because today's online journalists frequently depend on confidential sources to gather material, their ability to promise confidentiality is essential to maintaining the strength of independent media."
Apple's argument that their efforts were intended to protect trade secrets were rejected by the court which determined that basic Constitutional rights overruled the argument. The court's ruling was extremely forceful in laying out the absolute right of online journalists and bloggers to the same protections enjoyed by journalists in other media. It said, in part:
"We can think of no workable test or principle that would distinguish 'legitimate' from 'illegitimate' news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace."
And went on to strongly reject the idea that there is a difference between bloggers and other journalists:
"In no relevant respect do they appear to differ from a reporter or editor for a traditional business-oriented periodical who solicits or otherwise comes into possession of confidential internal information about a company."
As far as the court is concerned bloggers are legitimate journalists, or more specifically, there is no criteria for judging the legitimacy of one kind of journalist relative to another, so everyone deserves the same rights and protections.
This ruling provides protection not only for bloggers and their sources, but for all email users, because it means that any effort to get access to your email will have to go directly through you rather than through your email provider. If someone wants to find out what your email says they will have to call you to testify about it with a subpoena and you will be protected by the 5th amendment.
EFF Spokesman and staff attorney Kurt Opsahl concluded: "Today's decision is a victory for the rights of journalists, whether online or offline, and for the public at large."
For more information see the coverage at InternetNews and Yahoo News.
Article comments
1 - Michael J. West
Fan-fucking-tastic.
The truth is, it's not people like Apple that are the most worrisome in this situation, it's the "traditional journalists" who are the problem.
The blogosphere has turned professional journalism into an "ivory tower" of sorts--it already was, of course, but now it's a bigger deal because they've got non-professional, untrained, non-"dues-paying" journalists competing for their audiences. And many seasoned journalists have begun to forget that "freedom of the press" doesn't only refer to a particular industry.
This here court ruling won't get rid of that kind of snobbery, but it might help embolden some of the bloggers who are intimidated about things like gaining access to high places. Maybe it'll even help some people recognize that this kind of populist approach is good for journalism as a whole.
Or maybe I'm a complete idealist and talking outta my ass.
2 - Samuel James
The fact is, there IS a difference between what we do and what the NY Times does. I say we're better because we are held accountable for what we print. Why? Because, unlike mass media journalism, there is no central headship (aka corporate ownership) over blogging. The chance for groupthink in something as large and accessible in blogging is significantly lowered.
3 - Dave Nalle
I think it's very telling that so many mainstream journalists are now stealing from bloggers. They've always been intellectually bankrupt, but the existence of the blogosphere really highlights that, because it shows how many people there are out here who can do their job as well or better than academically trained journalists can.
Admittedly there's also a great deal of crap in the blogosphere, but the best investigative bloggers and the best blog pundits are as good as or better than their journalistic equivalents, and not as beholden to the journalistic culture or groupthink as was pointed out earlier.
Dave
4 - Michael J. West
Admittedly there's also a great deal of crap in the blogosphere
That's true, but there's a helluva lot of crap in traditional journalism, too.
5 - Dave Nalle
Sturgeon's rule is universal, I fear.
Dave
6 - Ruvy in Jerusalem
Dave, don't wet your pants with happiness just yet. Do you seriously thing that Apple will not appeal? This is just a court of appeals decision. There is yet another appellate level to go. And this is a sexier and more interesting case than the ever present arguing over abortion - a least for judges...
In the meantime, if I'm a journalist, where the hell is my paycheck?!!!
7 - Dave Nalle
I don't think Apple can afford the bad press they're getting. They're going to back off, because they can't afford to look like the bad guy and get every blogger slamming them endlessly.
Dave
8 - Richard Marcus
Curious question:
I'm assuming this ruling is only relevent to the protectin of journalistic sourses, and the police and the governments can still apply to open your email in the same manner they apply to tap your phone or open your snail mail?
In reality all this ruling does is give email the same sort of legal protection as telephone conversations and snail mail, which of course it the way it should be.
9 - Ruvy in Jerusalem
Dumb question, Dave,
Anyway to get a hold of the legal briefs ad the actual decison of the court?
10 - Dave Nalle
Richard, I think with a warrant they can still access your email, but they would have to go through you to get to it, rather than just bullying your ISP into giving it to them.
Ruvy, if you click the link to the EFF in the article it takes you right to their page with the legal briefs and other documents.
Dave
11 - Wright
Absolutely fascinating. Let's hope this ruling continues to stand.
12 - Nukapai
This was a very interesting read, thank you. I can't say I blame Apple for trying to track down the sources (what the people who leaked information did was, after all, wrong) - but I am delighted that such a court ruling has taken place because it sets a precedent that could be significant in the future.
13 - Dave Nalle
Indeed, nothing wrong with Apple wanting to protect their interests, but that needs to be done by working with their own employees to find the leakers, not by trying to pressure bloggers who weren't doing anything wrong by publicizing the information once they had it.
Dave
14 - Nancy
Isn't getting into people's emails & phone conversations without warrants what all the fuss is about regarding Bush & the NSA lately? So, if they don't cavil at violating your civil rights with the phone, why would they stop w/email? I doubt they do.
15 - Dave Nalle
It's a lot more complicated than that, Nancy. And there's a big difference between Apple bullying blogger/journalists and the government trying to track down terrorists. On the contrast between corporate paranoia and national security alone you ought to understand the difference.
Dave