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March 22, 2005
EFF Files for Appeal in Apple v. Does
EFF today filed a petition for appeal [PDF] in Apple v. Does, arguing that the central issue in the case is not "the merits of Apple's trade secret claim nor even the potential liability of these non-Party reporters should Apple ever sue them (it has not). Rather, the question is only whether Apple may ride roughshod over the reporter's privilege and the reporter's shield in its eagerness to obtain evidence."
In other words, can Apple do an end-run around the California reporter's shield and the journalist's privilege under the federal First Amendment by forcing a third party (in this instance, Jason O' Grady's ISP) to divulge a reporter's confidential sources? If so, can it do so without first exhausting all other means of securing the information?
Remember, these reporters did not steal any information from Apple, bribe any Apple employees, or break any non-disclosure agreement. They are not defendants in any criminal action, and no criminal investigation is underway. Yet the trial court applied the consitutional reporter's privilege as though this were a criminal case. It even compared these journalists to "fences" in stolen goods.
EFF has prepared an FAQ to complement the official press release on the petition for appeal; we're hoping it helps clarify what's happening and why it matters for journalism.
Update (March 23): From my referrer logs, an astute appraisal of the situation: "Maybe I'm missing something here, but it does seem kinda like Apple is supposed to rip apart its own house before ripping apart those of journalists."
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