ARTS & FARCES internet

In a decision that shouldn’t have been surprising but was, a California appeals court ruled yesterday that all journalists—online or off—are protected by the same confidentiality laws, commonly known as “shield laws.” Apple Computer had sought to identify leakers of confidential information and won the initial decision on trade secret grounds. A three-judge panel in San Jose overturned the original trial court’s ruling and also held that a subpoena issued by Apple to obtain “electronic communications and materials” from an internet service provider was invalid. Instead of bringing a lawsuit against PowerPage and Apple Insider—online publishers—directly, Apple instead tried to subpoena the publishers’ email and the email records of their internet service providers.

The appeals court was frank in its opinion:

“We can think of no workable test or principle that would distinguish ‘legitimate’ from ‘illegitimate’ news. Any attempt by courts to draw such a distinction would imperil a fundamental purpose of the First Amendment.”

The decision also has significant privacy implications, according to the Electronic Frontier Foundation’s co-counsel for the publisher:

“‘In addition to being a free speech victory for every citizen reporter who uses the Internet to distribute news, today’s decision is a profound electronic privacy victory for everyone who uses email,’ said EFF Staff Attorney Kevin Bankston. “‘The court correctly found that under federal law, civil litigants can’t subpoena your stored email from your service provider.’”