April 6th, 2006
Apple vs. Me
Would you ever want to be on the business end of legal action from a company with US$9 billion in cash? What about being targeted for deletion by one of most powerful multi-national corporations in the world? What if a company with US$14 billion in revenue and 14,000 employees wanted a piece of your ass?
Welcome to my world.
This case is not about me, it’s not about Apple, and it’s not about the technology industry. It’s about the First Amendment. On December 13, 2005 Apple filed suit against "Does 1-20" in a Santa Clara California court. The company obtained a court order that allows it to issue subpoenas to PowerPage (and AppleInsider) for the names of the "Does" who allegedly leaked information. A nice Christmas card from the company that I have loved and supported for years.
But Apple didn’t subpoena me directly, they instead set their legal sights on the low hanging fruit - my ISP - a small company that was handling my email and Web hosting in addition to a few other clients. What’s sad about Apple’s approach here was that their attorneys attempted to intimidate a small host/developer/ISP with legal threats that look pretty daunting when coming from a company with US$14B in revenue on their balance sheet.
At issue was a series of stories that I ran in October 2004 about an upcoming product that was in development. Was it the next great PowerBook? Maybe the a red hot iPod? Maybe a killer new version of the OS? Nah. The stories about a FireWire breakout box for GarageBand, code-named "Asteroid." Yawn.
After the subpoenas were issued the Electronic Frontier Foundation (EFF) approached me and offered to defend me pro bono, arguing that the anonymity of my sources are protected by the same laws that protect sources who leak information to journalists.
A Santa Clara County judge decided that journalists and their sources lose constitutional protection when they publish information that a business classifies as a "trade secret." The irony here is that a large corporation can claim that their cafeteria menu is a "trade secret" then sue your ass off if you post it on your blog. The EFF filed a petition to have that decision overturned. (You can read the details of the case on the EFF Web site.)
On April 20, 2006 the Electronic Frontier Foundation (EFF) will have that petition heard by the California Court of Appeal. The purpose of the hearing is so that a judge can decide whether the Santa Clara County court made a mistake when it refused to protect my rights under the First Amendment.
A friend made one of the best analogies about the situation that I’ve heard: He told me that the reason why a house cat doesn’t eat you is because it’s smaller than you. He went on to say that if the cat was larger than you it sure as hell would eat you. It appears that Apple used to be a small, friendly cat and now (thanks in large part to the success of the iPod) it’s a whole lot bigger - and starting to eat people. "Tiger" indeed.
My position on the Asteroid postings is that I didn’t steal the information and I didn’t ask for it. Someone volunteered it to me and it looked credible, so I posted it. It wasn’t marked confidential, trade secret or any such thing but it looked legit to me, so I ran it. When Apple later asked me to remove it, I complied.
Apple feels that independent online journalists are not protected by the First Amendment of the U.S. Constitution and that a journalists confidential communications and sources should be exposed to them or any large corporation that doesn’t like what they publish - at will. I think that this is completely wrong on several levels.
Here’s why you should be scared:
This case is not about me, it’s not about Apple and it’s not about the technology industry. It’s about the First Amendment. If we don’t have a free press and protection under the First Amendment large corporations can sue any journalist publishing something that they don’t agree with. The last time I checked, this was the United States of America - not communist China - and we are protected by a wonderful document called The Constitution.
Imagine if Apple wanted to raid your email in-box then sue you for saying something they didn’t like. Something has to be done to protect the press from paranoid corporations bent on controlling the media. This case doesn’t affect me, it affects every citizen in the United States.
Blogger and fellow at Harvard’s Berkman Center, Derek Slater, wrote on Thursday that the lower court’s decision threatens all journalists.
"EFF petitioned to correct the trial court’s manifest error and restore the previously well-settled constitutional protections for a journalist’s confidential information, upon which the practice of journalism and the freedom of press depend."
This decision will have a profound affect on the rights to free speech we all enjoy. Support the EFF and bloggers rights.
But don’t take my word for it, read the Amicus Briefs filed in this case by several industry luminaries, including:
- Jack M. Balkin, professor of Constitutional law and the First Amendment and Director of The Information Society Project at Yale Law School.
- Eugene Volokh, professor of law at UCLA School of Law, where he teaches and writes about First Amendment law.
- A. Michael Froomkin, professor of Law at the University of Miami School of Law and well-known expert on issues of Internet governance.
- Julian Dibbell, contributing editor at Wired magazine
- Rebecca MacKinnon, journalist, media consultant, blogger and former CNN correspondent and Bureau Chief in Beijing and Tokyo.
- Glenn Harlan Reynolds, law professor at the University of Tennessee, publisher of InstaPundit and writer for MSNBC and The Wall Street Journal.
- Jay Rosen, NYU faculty member, press critic and writer whose primary focus is the media’s role in a democracy.
- Scott Rosenberg, Senior Editor of Technology at Salon.com.
Some of the organizations that have supported me in this case include:
- The Associated Press
- The Hearst Corporation
- Los Angeles Times Communications
- The San Jose Mercury News
- The Copley Press
- The Mcclatchy Company
- Gawker Media Inc.
- Society Of Professional Journalists
- The First Amendment Project
Jason D. O'Grady is the editor of PowerPage.org, which has been publishing daily mobile technology news since December 1995. For disclosures on Jason's industry affiliations, click here or to view Jason's full profile click here.
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| 04/06/06
