The subpoenas should not be permitted because Internet journalists deserve the full protection of the First Amendment that their traditional brethren have long enjoyed, the lawyers said in a brief filed in Santa Clara Superior Court.
These writers "cannot be compelled to disclose the source of any information procured in connection with their journalistic endeavors, nor any unpublished information obtained," the brief says. "The reporter's privilege applies to online publication and print publication equally." The brief was prepared by the Electronic Frontier Foundation and two local law firms.
In December, Apple filed a "John Doe" lawsuit against unnamed people who leaked information about the company's purported plans to release a product that would help to link Macintosh computers and musical instruments. In short order, Appleto PowerPage and Apple Insider, which had published reports about such a product.
"This information could have been obtained only through a breach of an Apple confidentiality agreement," the computer maker argued in court documents at the time. A lawyer representing Apple at the O'Melveny & Myers law firm was not immediately available for comment on Monday.
The subpoenas directed against PowerPage and Apple Insider raise the question of whether online writers, especially those who might be part-time or have other jobs, enjoy the same legal protections as their paper-based colleagues. California law shields journalists "connected with or employed by" newspapers, magazines, periodical publications and wire services from divulging their sources--but it doesn't explicitly mention Internet sites.
Online journalists "should enjoy as much protection as anyone," said Gregg Leslie, legal defense director of the Reporters Committee for Freedom of the Press in Arlington, Va. "The size or nature of the audience doesn't really matter."
Leslie said that in the 1950s, during the early days of broadcast TV, "television reporters had to argue they should be included in the definitions" of who is a journalist. "Anytime there's an advance like that in communications you have to argue that you're doing the same thing" as print reporters, he said.
EFF and the law firms of Tomlinson Zisko and Richard Wiebe are defending three people who have been targeted by Apple: Jason O'Grady, a freelance journalist who also edits the Mac news site PowerPage; Monish Bhatia, who publishes the Mac News Network and provides hosting services to Apple Insider; and Kasper Jade, who publishes Apple Insider under a pseudonym.
This lawsuit is related to, but separate from, a parallel case filed last month in whichsued Mac enthusiast site Think Secret and other unnamed individuals, alleging that recent postings on the site contained Apple trade secrets.