Can our favorite computer manufacturer force bloggers to release evidence about their sources for leaks—and will it benefit them?

As background to this column, you might want to read my discussion of Apple v. Does from February. I originally promised that this column would come in March, but very little happened ’til early March and I wanted to write about the Super Bowl commercials.

At any rate, the first part of my question has already been decided: Judge James Kleinberg, of Santa Clara County (CA) Superior Court, ruled March 15 that Apple can subpoena Power Page’s e-mail in the first round of their lawsuit against sources who gave information to Apple Insider and O’Grady’s Power Page, and in a preview to their separate suit against Think Secret.

The media and a number of big-name bloggers have gotten quite tangled up in the oft-cited defense that blogs are like newspapers and, as journalists, the bloggers’ sources’ identities are protected under California’s shield law.

Kleinberg’s decision (185K PDF), of course, sidesteps the entire issue, ruling that the state’s trade secrets law trumps any potential shield-law protections. Moreover, he explains,

Easily overstated in its power, “[t]he description ‘shield law’ conjures up visions of broad protection and sweeping privilege. The California shield law, however, is unique in that it affords only limited protection. It does not create a privilege for newspeople, rather it provides an immunity from being adjudged in contempt.

Based on the language and the facts presented, it is far from clear that [Jason] O’Grady [of O’Grady’s Power Page] qualifies for relief from the subpoena on the grounds advanced. Whether he fits the definition of a journalist, reporter, blogger, or anything else need not be decided at this juncture for this fundamental reason: there is no license conferred on anyone to violate criminal laws.

In other words, the question of whether bloggers are journalists, at least under California law, is irrelevant. (And the shield law doesn’t protect journalists from violating laws anyway; it merely protects them from being held in contempt of court.)

That did not stop the endless discussion, of course. Dan Gillmor, who as an ex-journalist should know better, gets confused on the ruling and insists Kleinberg’s ruling threatens online journalism. Jacob Weisberg at Slate is confounded, in passing, by The New York Times and suggests that California law protects journalists and the case is about bloggers being excluded from it. The Blog Herald gets twisted around and thinks bloggers will be emboldened by the decision and will seek out more trade secrets, which makes no sense to me. Donna Wenworth, at Corante’s Copyfight, insists that the case is about a reporter’s right to the First Amendment, which is a nice sentiment, even if the case does not appear to have any outstanding Bill of Rights implications. As a nice balance, Rob McNair-Huff at Mac Net Journal manages to get confused about the shield laws and still see the big point.

What’s that big point? To my eye, Apple is losing the war for public opinion, even as they’re winning the battle over their sources.

You will not see me excuse people who break laws. There’s no excuse for violating trade secret laws, even if you think the things that the company claims are trade secrets really are not, unless there is some greater purpose than merely a desire for information. What Nick Ciarelli, Jason O’Grady, et al. did is in violation of the law, and our protections for lawbreakers who provide information tend toward a test of whether the public is better off with the information than without it. In this case, I have yet to hear a compelling argument that the public benefits one way or the other, and in that event the injured party, Apple, has the trump card.

John Gruber at Daring Fireball, ATPM staffer Chris Turner who writes Retrophisch, and Timothy Hadley at Math Class for Poets all get this. Gruber, who I quote so often he might be writing my columns for me, says of the decision:

So, yes, there’s a First Amendment argument that these sites have the right to publish this information, and to keep their sources confidential—but these rights are outweighed by California’s trade secret statutes and established case law.

Rights are not absolute. Recall Justice Oliver Wendell Holmes: “The right to swing my fist ends where the other man’s nose begins.” What the court is saying here, more or less, is that the right to publish information about Apple ends where their trade secrets begin.

This is the aspect of these cases that has the potential to truly matter. There is definitely a case to be made that trade secret statutes should not outweigh First Amendment rights. Getting trade secret laws ruled unconstitutional would make for, needless to say, a landmark case.

Hadley is less clear, and sides with the defendants, but he reminds us that Apple is suing because they have perceived damage. He writes:

My first impression is that Apple likes word-of-mouth and media hype for its products, but it really wants to be able to control that hype itself…. In some circumstances, Apple might want to conceal new product plans because it wants the maximum lead time in the market before competitors could develop a competing product.

Lastly, Chris reminds us that because this hurts Apple, the company has every right to seek damages—and that “something punitive enough to ensure they will discontinue this nonsense” should be ample to prove the point.

I admit that I’ve found the case disconcerting. Apple Computer, Inc. has a reputation of being at the center of a gigantic cult-like universe. We Mac users are fanatics, and ATPM is Exhibit No. 1, a magazine built solely on our readers’ twin needs: information and worshipful devotion.

To my eye, these webloggers/journalists, people like O’Grady and Ciarelli, are the newest generation of the vanguards at the frontier of Mac worship. They’re the fuel for the endless speculation and hype. Obviously, Icarus-like, they got too close to the sun, but without the information they (illegally) provide I don’t think you’d see a wealth of, well, Mac blogosphere. Would I be able to write what I do without the constant speculation about new product releases? It would be the John Gruber Show.

My worry seems to be fairly common. McNair-Huff and Gillmor put it best, but I’ve seen this all over. Can Apple maintain good will with its customers without its slavering vanguard of fanatical fans getting the information in advance?

I’m not sure. They’re forcing me to do real reporting, rather than just scratch at the surface of their rumors, that’s for sure.

Copyright © 2005 Wes Meltzer, wmeltzer@atpm.com.