Apple vs. the Bloggers: How It Unfolded and Where It Stands Now
Pages: 1, 2
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 or for refusing to disclose any unpublished information obtained...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.
Final Thoughts
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.
Resources
Richard Koman is a freelancer writer and editor based in Sonoma County, California. He works on SiliconValleyWatcher, ZDNet blogs, and is a regular contributor to the O'Reilly Network.
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Showing messages 1 through 9 of 9.
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Clarifying quote about Apple and NDAs
2006-06-19 14:31:01 Richard Koman |
[Reply | View]
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Clarifying quote about Apple and NDAs
2006-06-20 09:36:41 RainyDay [Reply | View]
Quoting Rob Enderle for anything related to Apple reflects poorly on you as a journalist. It’s a safe bet that whatever Enderle has to say about Apple is wrong, and this is no exception.
Even after “clarification,” Enderle is (still) wrong regarding NDA’s and Apple. They use them like crazy. Anyone privy to any pre-released product is required to sign an NDA, be they press, developer, stock analyst, employee or whatever.
Enderle is also wrong when he says that they do not pre-disclose to the media. Reviewers regularly get advance copies of software, and advance access to new hardware is made available to journalists the calibre of Walt Mossberg.
I rather doubt Apple gives Enderle advance access to anything, however; they know his calibre.
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I hope Apple takes it up to the Supremes.
2006-06-13 19:32:40 sigzero [Reply | View]
Really, bloggers are NOT journalists. Sooner or later there is going to have to be a clear cut definition of what a journalist is and just because you blog doesn't make you one. The word blogger is too wide a definition. -
I hope Apple takes it up to the Supremes.
2006-06-15 05:12:14 DuckFOO [Reply | View]
Journalism is something anyone can do. Who are you to say that someone isn't a journalist just because he uses Wordpress to get things out? -
I hope Apple takes it up to the Supremes.
2006-06-25 11:50:08 rufferto [Reply | View]
I'd go further than that. Who are journalists that they require special privileges? Shouldn't the law and constitutional protection apply equally to everyone? Either everyone has the right to withhold their sources of information or no-one does. Either everyone has a right to privacy (on the internet or off) or no-one does. I think the real issue boils down to whether a person is contributing to an illegal act and not whether or not they are "journalists".
However in that regard I have to side with Apple's argument that the disclosure of this information was very likely a criminal act since the material was NDA'd and publishing the documents amounts to aiding and abetting. The only way such material could be justifiably published would be if the NDA'd material were itself evidence of criminal misconduct and thus of public interest. Otherwise what you have is just a group of people who want to know Apple's trade secrets and what Apple is doing before anyone else does. Let them all sign NDAs and/or try to work for Apple if they are so inclined.
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I hope Apple takes it up to the Supremes.
2006-06-13 19:55:15 Richard Koman |
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So, the court pretty much did draw this line. It's not a question of what technology you use to publish your writings but rather whether you act and organize in a journalistic fashion. Here, the "bloggers" had a track history of real reporting, had sources contacting them, published daily, etc. The issue is, how would this be different if the sites were the NYT.com instead of AppleInsider? If the only difference is size or name recognition of the site, it doesn't seem reasonable to say one is a jouralist and one is not.
If that is so, surely the line of journalism isn't online vs. print.
But, this is very important, just because these guys do work as journalists doesn't mean *every* blogger is a journalist; I quite agree with you. It means that just because you use blog software doesn't mean you're NOT a journalist. -
I hope Apple takes it up to the Supremes.
2006-06-15 09:45:54 DanaScully [Reply | View]
You've completely misrepresented what the court actually did and what the ruling means. Maybe if you were an attorney and actually understood what it said, you might get it right. As it is, you're just repeating the same spin of the EFF and supporters of these particular web sites.
The ruling does not establish that bloggers are journalists; it only established that the court abdicated it's responsibility in determining who is or is not a journalist, which they must do before the reporter's shield could be applied. This is the Mitchell Test, established by the California Supreme Court.
There is no First Amendment protection for reporters, and there never has been; the U.S. Supreme Court affirmed this in a ruling last year. All citizens are guaranteed the right of free speech, nothing more.
The California Reporter's Shield does not protect any reporter from disclosing their sources in a criminal case, nor is there any federal protection for this circumstance.
You consult and then quote the famously clueless "analyst" Rob Enderle, who says that Apple is really the only firm that doesn't use non-disclosure agreements. Did you even bother to check your facts> Of course not, that would be too easy. Apple has used NDAs for many years, and all employees are subject to them as a condition of employment.
The court assumed that Apple hadn't exhausted all their options for finding the source of the leak in-house; there's no evidence to support that assumption. It's not as though Apple doesn't know what they're doing.
Apple never argued that the plaintiffs weren't journalists, only that if they were, they weren't engaged in any activity that would grant them protection under the California Reporter's Shield law. Even the appeals court determined that what they published were in fact trade secrets.
Your argument that we wouldn't be having this discussion if it had been the New York Times is typical of the fallacies you and your ilk promote. Apple or any other tech company would sue anyone if they published trade secret information. It's a criminal act, so size has nothing to do with it. Apple has $9 billion in free cash, so they could easily outlast the NYT in any litigation.
Next time you feel the need to write about something you know nothing about, don't.
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I hope Apple takes it up to the Supremes.
2006-06-15 10:48:37 Richard Koman |
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To start with, I am reporting on what the court said. I am not second-guessing it just what it said and what it means. Please don't think that your disagreement with the court gives you a license for rudeness.
To address your points:
1. "The ruling does not establish that bloggers are journalists; it only established that the court abdicated it's responsibility in determining who is or is not a journalist, which they must do before the reporter's shield could be applied. This is the Mitchell Test, established by the California Supreme Court."
First, I did not say in the article or in my previous comment that bloggers are journalists; the article quoted Lauren Gelman's interpretation of the ruling: people who do journalism are do not lose the protections afforded to journalists merely because they are not attached to established media organizations, or because they don't publish in newspapers, magazines or radio/TV.
The ct of appeals essentially did make that determination and found that for purposes of the Shield *these* bloggers are journalists.
The Mitchell Test does not mention in any way a requirement to decide whether the journalists are in fact journalists. (37 Cal.3d 268 - you can find it on FindLaw.com) Mitchell establishes a balancing test between a "qualified" (not nonexistent, qualified) reporter's privilege under the First Amendment and a right of plaintiff in civil cases for disclosure. You can read either the Apple decision or the original Mitchell case to understand the prongs of that balancing test.
2. "There is no First Amendment protection for reporters, and there never has been; the U.S. Supreme Court affirmed this in a ruling last year. All citizens are guaranteed the right of free speech, nothing more."
If you want to provide a cite to this case, I will read it. The law in California is the Mitchell Test, which establishes, based on Supreme Court readings of the 1st Amendment, a qualified reporter's privilege. Granted, the First Amendment protection is weak, but it is not nonexistent. The First Amendment argument is not really core here, anyway, since Cal. has a Reporter's Shield.
3. "The California Reporter's Shield does not protect any reporter from disclosing their sources in a criminal case ..." This is not a criminal case; it is a civil case. The Shield does protect reporters from jail for failure to disclose sources in *civil* cases. Perhaps I should have made that more clear.
4. If Enderle is wrong, that only impacts an analysis of the impact on Silicon Valley, not the meaning of the decision.
5. The court detailed many additional options Apple could have pursued but did not. They are listed in the article.
6. There is no distinction between an argument between "are they journalists" and "are they protected." The only question is "are their activities protected under the Shield," which is equivalent to, are they journalists? Hair-splitting does not create an inaccuracy where none exists.
7. "Your argument that we wouldn't be having this discussion if it had been the New York Times is typical of the fallacies you and your ilk promote."
My argument was that there would be no question that work published on nytimes.com (although I should have said latimes.com, since we're dealing with the California Shield here) would be protected under the Shield. THis is because LA Times is an established news organization. It was an open question whether work of these bloggers would be protected. This has now been decided, in the absence of an appeal to the Cal. Supreme Ct.
8. "Apple or any other tech company would sue anyone if they published trade secret information. It's a criminal act, so size has nothing to do with it. Apple has $9 billion in free cash, so they could easily outlast the NYT in any litigation."
Apple has every right to sue the people who violated their trade secrets, I agree. Trade secrets violations are both civil and criminal. This action was civil. To my knowledge, Apple has not asked the Dept. of Justice or the Cal. Attorney General to get involved, so there is no criminal aspect to this whatsoever. This is a civil action, and the damages for which the perpetrators would be liable, if they were to be identified and sued and found in error, would be civil damages ($).
As this is not a case on the scale of asbestos or DES, I seriously doubt NYT Co. would be unable to maintain litigation all the way through the process. If EFF did it, I'm sure NTY could.
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I hope Apple takes it up to the Supremes.
2006-06-15 14:55:24 DanaScully [Reply | View]
As I said, bloggers or whatever they want to call themselves, are not journalists. You've cited Lauren Gelman's "spin", which is nothing more than a parroting of the EFF spin on the ruling. Unless you're actually engaged in journalism and doing real reporting as opposed to publishing verbatim from another source, you're not a journalist. Publishing stolen trade secrets is not journalism.
Before the reporter's shield law could be invoked, the Mitchell Test must be applied, which the court did not do. They cited that case in their ruling, but only after they had already determined they were going to try to extend the reporter's shield to any blogger.
I can't recall the case citation, but I did read the ruling with interest when it came out. There simply is no First Amendment protection for reporters, no matter what the EFF would like everyone to believe. Regardless of the California Supreme Court decisions, U.S. Supreme Court rulings take precedence.
You're right, this isn't a criminal case--yet. And that should worry the plaintiffs a great deal, because there is no protection for reporters in a criminal case for not disclosing their sources. Should they be convicted, they will spend time in prison.
Rob Enderle should never be asked for a comment, or quoted; he's always wrong whenever the subject is Apple Computer.
The court detailed various options Apple could have taken to possibly find the source of the leak, but in the end, they assumed Apple did none of them, because Apple didn't give them any details on what they had or had not done. There's no evidence to support their conclusion, and unfortunately, nothing to disprove it.
There is a very real difference between "are they journalists" and "are they protected" under Mitchell. You could be a journalist and yet acting in a manner inconsistent with journalism, such as knowingly publishing stolen trade secrets. In that case, you would not be protected by the reporter's shield.
It wouldn't matter if it were the New York Times or the L.A. Times; Apple or any other tech company would sue them if they published trade secrets. Even their editors know better than to get involved in that. Many bloggers, including Jason O'Grady have tried to sell the argument that Apple wouldn't sue a big media organization.
They're wrong, because it's not a question of money; both NYT and LA Times have plenty of money and lawyers on retainer. Apple would sue them anyway.
Apple will appeal, all the way to the U.S. Supreme Court if they have to, and I'm confident this ruling will be reversed.
"Every technology firm has NDAs on their employees; it was never my intent to imply they didn’t. It is the lack of a trust relationship with the media coupled with a lack of roadmap (and arguably a rabid fan base) that creates this problem - and it is largely unique to Apple.
"What Apple doesn’t do is do NDAs with media, which makes them a natural target and they stand alone in that practice. It's like painting big red circles on their stuff and they have none of the natural protections that NDAs with the media might provide. The other technology companies have not, to my knowledge, gone after bloggers for leaks and have less speculation about what they are doing because they generally disclose road maps anyway. Apple generally stands alone with that practice as well.
"So where Apple stands alone is their practice of not pre-disclosing media under NDAs, in not providing guidance which makes even breaking the NDAs less newsworthy, and in suing media when the environment they have created results in the leaks they, in effect, provide incentives for.
"The amicus briefs that were filed were filed by companies that really aren’t in the same business that Apple is in. Apple is in the consumer electronics and PC business and none of the supporting firms (who typically do this because of joint relationships between the law firms anyway) are in that business, so Apple stood alone in their market based on the briefs I know about."
As a point of fact, according to the (http://www.eff.org/Censorship/Apple_v_Does/)EFF document collection on this case, there were three amicus briefs filed on behalf of Apple, from the Information Technology Industry Council, Genetech and Intel/Business Software Association.
In light of the discussion I did place calls and emails to Apple PR to verify Enderle's statements, but received no response. We'll update the article to reflect this as soon as possible. Finally, while it is interesting (http://daringfireball.net/) to be called names online, I would suggest that it's better to seek clarification than to assume stupidity.