O'Grady, Jade and Bhatia Win Appeal of Apple Leaker Subpoena Ruling
The California Court of Appeals today ruled in favor of Jason O'Grady (PowerPage.org), Kasper Jade (AppleInsider.com) and Monish Bhatia (Web host for AppleInsider.com) in their attempt to prevent Apple from obtaining their email indirectly through their ISPs and directly from them. This is a happy outcome for them and an important ruling for online journalists and news Web sites alike.
Apple has attempted through subpoenas to obtain certain emails of Jason O'Grady and Kasper Jade that relate to a product under development called "Asteroid," reputedly a breakout box for musical instruments to connect to a Mac and use GarageBand. O'Grady and Jade posted the information on their Web sites in late 2004. Apple wants the email to help determine who at Apple leaked to the two Web sites what Apple claims are trade secrets.
The three sought a protective order in California District Court against the subpoenas but lost when the judge ruled in favor of Apple's right under California law to protect its trade secrets over the right of the three to maintain the confidentiality of their sources since their publication of the information served no apparent public interest. The issue of whether or not online journalists are real journalists was skirted in the original decision.
The three appealed the ruling and won in the California Court of Appeals in a decision announced today. According to our reading of the finding, the decision is based on Apple's subpoena of email from the ISPs being invalidated by the federal Stored Communications Act, i.e. ISP's can not be compelled by a third-party subpoena to release email to the third party under the circumstances alleged by Apple. Moreover, the Appeals Court ruled that O'Grady, Jade and Bhatia qualify for protection under both California's reporter shield law and the free press rights of the California and U.S. Constitutions. The latter appears to make them immune to any subsequent Apple subpoena of them directly. The protective order they sought was ordered to be granted.
The ball is now in Apple's court and Apple will decide whether or not to appeal to the California Supreme Court. Apple may also have federal appeal routes since interpretations of federal law were included in the decision. [Update: Here is an online post of the decision.--Bill Fox]
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