Friday, April 21, 2006

Freedom of the Blogs?

A California court in San Jose on Thursday is scheduled to hear a case brought by Apple Computer that eventually could answer an unsettled legal question: Should online journalists receive the same rights as traditional reporters?

Apple claims they should not. Its lawyers say in court documents that Web scribes are not "legitimate members of the press" when they reveal details about forthcoming products that the company would prefer to keep confidential.

"Unlike the whistleblower who discloses a health, safety or welfare hazard affecting all, or the government employee who reveals mismanagement or worse by our public officials, (the Macintosh news sites) are doing nothing more than feeding the public's insatiable desire for information," Kleinberg wrote at the time.

The Electronic Frontier Foundation, which is representing the Apple news site, is hoping the appeals court will pull the plug on a subpoena that could yield details about who leaked information about a FireWire audio interface for GarageBand that has been codenamed "Asteroid." The subpoena is on hold during the appeal.

"The California Court of Appeals has a long history of protecting freedom of the press," Kurt Opsahl, an EFF staff attorney who is arguing the case, said on Wednesday. "We're hopeful they'll continue to do so."
Source: ZDNet Asia - Apple pushes to unmask product leaker (Declan McCullagh, CNET
What a case this is. First, I have seen nothing indicating the blogger is being prosecuted, just being asked to cough up his source. The blogger is hiding behind secrecy of source arguments which is a bad position to be in, especially in this case.

Freedom of the press is about publishing what you want, not about finding it out. If you find out about it you can publish it and not be prosecuted by the government for such publication.

The other tack on this is whistleblower protection. Puhleaze! If it was disclosed Apple was going to dump arsenic into a batch of Puppy Chow then I have sympathy for a whistleblower argument, but this is no such thing. In fact, Apple could make the case this is a industrial espionage and should be treated as such.

Apple has something it considers a trade secret and it does look like that is what it was. Dude at Apple, for whatever reason wants it to get out (perhaps dude wanted it out because he shorted Apple Stock, perhaps he is long on Apple's competitors, his boss told him to work instead of surfing the web who knows, or perhaps it was inadvertently spilled over beers) and leaks the information to a blogger the blogger than publishes the trade secret.

This is not a freedom of the press issue. However, any ruling that casts bloggers and blogging in a different light than the press would be bad and constitutionally incorrect. I do not recall reading in the constitution as to what constitutes the proper press and what does not.