Apple vs. the Bloggers: How It Unfolded and Where It Stands Now
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The Reporter's Shield
Under the California Reporter's Shield law, journalists cannot be held in contempt of court for failing to disclose information about their sources. The issue is who is a journalist and what news organizations are covered under the law. The Shield law says:
"A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication... shall not be adjudged in contempt... for refusing to disclose the source of any information procured... or for refusing to disclose any unpublished information obtained... in gathering... information for communication to the public."
Apple argued that the sites are not protected by the law and that the writers were not engaged in legitimate journalism. These guys are not journalists, Apple said. They merely trade in "trade secret misappropriation" and copyright violation. Apple denigrated the site's operators as mere "posters" to websites. "...If Petitioners' arguments were accepted, anyone with a computer and Internet access could claim protection under the California Shield and conceal his own misconduct."
In deciding whether the Shield extends to PowerPage and AppleInsider, the court looked at whether the sites activities were substantially journalistic in nature, regardless of the medium. Among the issues:
- Is mere posting of documents a less journalistic activity than writing about the documents?
- Is publishing on the web less deserving of protection than publishing in print or over the airwaves?
- What constitutes a news organization?
Posting of the documents. The trial court emphasized Apple's point that the sites merely posted the purloined documents without providing editorial analysis. "The undisputed facts are that Mr. O'Grady took the information and turned around and put it on the PowerPage site with essentially no added value."
That argument made little sense to the Appeals Court. "A reporter who uncovers newsworthy documents cannot rationally be denied the protection of the law because the publication for which he works chooses to publish facsimiles of the documents rather than editorial summaries," the court said. "The primacy Apple would grant to editorial function cannot be justified by any rationale known to us."
Displaying a clear understanding of the Internet, the court added:
Digital communication and storage, especially when coupled with hypertext linking, make it possible to present readers with an unlimited amount of information in connection with a given subject, story, or report. The only real constraint now is time -- the publisher's and the reader's. From the reader's perspective, the ideal presentation probably consists of a top-level summary with the ability to "drill down" to source materials through hypertext links. The decision whether to take this approach, or to present original information at the top level of an article, is itself an occasion for editorial judgment. Courts ought not to cling too fiercely to traditional preconceptions, especially when they may operate to discourage the seemingly salutary practice of providing readers with source materials rather than subjecting them to the editor's own "spin" on a story.
To Gelman, this language supports a broad definition of journalism for legal purposes. "The case says it's legitimate for websites to publish entire documents, not just reports about documents. News is not just going to be reporters' analysis but also users' ability to view source documents. Wired News recently published entire documents from the AT&T case. Hopefully, we'll see a burgeoning of this journalism of pointing readers to source documents."
Who is covered? In its brief, Apple repeatedly dismisses the writers as people who "post information on a website," suggesting that allowing them to be covered under the shield would effectively extend the journalists' protection to any and everyone who ever writes a blog, submits a comment or posts to a bulletin board. The shield would be so broad as to be meaningless, the company says.
Here, the court took Apple to task for playing fast and loose with such language. Apple conflates "the open and deliberate publication on a news-oriented website of news gathered for that purpose by the site's operators" with the casual depositing of "information, opinion, or fabrication by a casual visitor to an open forum." The former kind of "posting," the Court said, is generally known as reporting. "[W]e see no theoretical basis for treating it differently."
What is a publication? The most vexing issue from the court's perspective was in interpreting what is a "publication." The language actually says "newspaper, magazine, or other periodical publication." Web sites are obviously not newspapers, but are they magazines? Is Slate not an online magazine? Salon? It would be hard to argue that those sites are substantially different than Newsweek or The New Yorker.
In any case, "other periodical publications" are also covered. While "publication" traditionally means print, there's no reason to think the Legislature meant to exclude non-printed editorial products. Looking to the goal of the law, to protect newsgathering, the court concludes the Legislature intended the phrase to include "all ongoing, recurring news publications." That includes PowerPage and AppleInsider, the court concluded.
So does this mean that all bloggers are journalists now? That any blog or website should feel confident about publishing any Apple secret they get their hands on? No, says Gelman. "It doesn't say all bloggers are journalists; it says, people who are doing journalism are journalists no matter where they publish," she said. "Not any person who posts anything online has the journalists' protection."
Still, the case offers a precedent to test just where the line will be drawn. "A lawyer might take this case and use it in the case of a common blogger who sometimes posts news," she said. "It opens the door to bloggers to be treated as journalists -- if they organize their activities as journalists do, as opposed to posters."
The Constitutional Privilege
The court also addressed journalists' Constitutional right to withhold sources unless a clear need is shown to require disclosure. The federal First Amendment protection is substantially weaker than the California Shield Law. The key question is whether Apple exhausted its options before demanding the sites turn over their sources.
The court found Apple far from exhausted their options. The court found that Apple identified 29 employees who had knowledge of the file and interviewed them. Apple said it did "everything possible" to trace the leak because employees were obligated to tell truth at risk of losing their jobs. But, the court asks, wouldn't an employee who admitted revealing confidential docs also be fired?
In any case, Apple didn't swear the employees to oath, which would expose them to criminal prosecution. Other than an examination of their email servers, Apple apparently did little forensic research. "Apple failed to establish what other modes of transfer were or were not traceable and what efforts were made to investigate the traceable ones."
The court asks if computer logs would reveal that an employee copied a file to CD, transferred to flash memory, printed the document, uploaded to an FTP server, emailed it via an web-based service, and so on. The court concludes that Apple utterly failed to exhaust many reasonable avenues of investigation; thus even in the absence of the Stored Communications Act and the California Shield, Apple would not persevere even under the relatively weak Constitutional protection.
So what will Apple do now? No reasonable company would continue to push the issue after such a resounding defeat, but Steve Jobs is not generally considered the most reasonable guy in the Valley. (John Markoff on Jobs in an interview from 2005: "He's a little tyrant. I wouldn't call him a sociopath but, you know, Jobs has got some very rough edges.") Apple could take the case to the California Supreme Court or simply drop it. Perhaps more likely, they can comply with the court's order and fully exhaust their internal investigations. Based on the Appeals Court ruling, there will be little point in that, since the sites are now well-protected by the California Shield Law.
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