Sunday, May 28, 2006

Apple Falls

A three-judge panel in San Jose overturned the trial court's ruling in the EFF case I've mentioned here several times over the past few months - thwarting Apple's attempts to Think Different about the First Amendment:

In its ruling, the appeals court said online and offline journalists are equally protected under the First Amendment. 'We can think of no workable test or principle that would distinguish 'legitimate' from 'illegitimate' news,' the opinion states. 'Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment.'

The ruling states that Web sites are covered by California's shield law protecting the confidentiality of journalists' sources.

Apple had argued that Web sites publishing reports about Apple were not engaged in legitimate news gathering but rather were misappropriating trade secrets and violating copyrights. But in its ruling on Friday, the panel disagreed.

"Beyond casting aspersions on the legitimacy of petitioners' enterprise, Apple offers no cogent reason to conclude that they fall outside the shield law's protection," the ruling states.

If upheld, the ruling could have far-reaching impact in California courts on other writers who publish electronically, including bloggers who regularly publish news and opinion online without the backing of a mainstream news operation.

"This ruling will probably prove instructive to other online writers," said Kurt Opsahl, a lawyer with the Electronic Frontier Foundation, a civil liberties organization, who argued the case in front of the appeals court last month. "It says that what makes a journalist is not the format but the function."
Litigation concerning the proper number of prongs in the soon to be demanded "function" test commences in 5 . . . 4 . . . 3 . . . 2 . . .

It's worth noting, again, that Apple never went after the on-line journos/bloggers/writers/whatevers directly - choosing instead to supboena their email records from their ISPs. That's right Mac fans, your beloved different-thinking company has no problem undermining privacy to leak-proof the operation.

Where's the sad mac icon when you need it.*

Aside from the journalist/blogger angle, then, the ruling finds that "under federal law, civil litigants can't subpoena our stored e-mail from your service."

Good grief, I hope so.

More on the case and a link to the complete decision here.

*You can see the sad mad via a quick google search - but fearing the wrath of Apple, I won't actually post it here.

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