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Friday, May 26, 2006

Apple v. Does Decision Issued

The Petition for writ of mandate and/or prohibition in Apple v. Does (a.k.a. O'Grady v. Superior Court) was granted today, in a 69-page published decision (PDF). This must mean good news for the Petitioners (that link takes you to the EFF page describing its representation of the online journalists), but I haven't read the opinion yet, will update in a bit.

[Update:] Still reading, but good news indeed for the Petitioners, the court held a protective order should have been issued (i.e., it is improper for Apple to be able to compel the identity of the sites' sources) because:

(1) the subpoena to the email service provider cannot be enforced consistent with the plain terms of the federal Stored Communications Act (18 U.S.C. § § 2701-2712); (2) any subpoenas seeking unpublished information from petitioners would be unenforceable through contempt proceedings in light of the California reporter's shield (Cal. Const., art. I, § 2, subd (b); Evid. Code, § 1070); and (3) discovery of petitioners' sources is also barred on this record by the conditional constitutional privilege against compulsory disclosure of confidential sources (see Mitchell v. Superior Court (1984) 37 Cal.3d 268 (Mitchell)).

(2) and (3) indicate the Court of Appeal considered the conduct "acts of journalism," as Dan Gillmor puts it. More as I read on.

[Update:] This has little if anything to do with the substance or outcome, but it's notable this court doesn't have any compunction about citing Wikipedia as support/context for its factual section: "As with many of the concepts in this opinion, the most authoritative and current sources of information may themselves be found on the web." (n.3)

[Update]: In note 7, the Court of Appeal criticizes the trial court for considering the presence of the word "Asteroid" in various PowerPage emails as a legitimate basis for granting an ex parte application seeking access to the account from the email provider:

The significance of this report is debatable. Email stored in the account presumably includes messages between and among staff members who prepared the Asteroid pieces for publication, as well as any relevant messages that may have been received from members of the public after publication of the articles. Indeed, the email sent to O'Grady by Apple's own attorney contained the word 'Asteroid' and was therefore presumably among those counted by Kraft.

[Update:] Further criticism of the trial court's logic in declining to grant the protective order: "The court also faulted petitioners for failing to establish 'what public interest was served' by the publications in question. While acknowledging evidence that thousands of people were interested in the information in question, the court opined that 'an interested public is not the same as the public interest.' The court implied that the publications in question were not 'protected speech.'"

[Update:] No evidence of criminal conduct; alleged conduct at worst a tort, and one carried out by Apple's own employee(s). From note 8: "[Penal Code] Section 499c criminalizes the misappropriation or attempted misappropriation of trade secrets under specified circumstances. Although Apple alluded to this statute in its memorandum below, and does so again before us, it has never demonstrated that the facts here could establish a criminal theft of trade secrets. . . . For present purposes we are concerned only with an allegedly tortious disclosure of a trade secret presumably by an Apple employee."

[Update:] Writ review appropriate "when a discovery ruling plainly threatens immediate harm, such as loss of a privilege against disclosure, for which there is no other adequate remedy [], or where the case presents an opportunity to resolve unsettled issues of law and furnish guidance applicable to other pending or anticipated cases []. [¶] Both of these principles appear applicable here." (Citations omitted.)


This case raises several novel and important issues affecting the rights of web publishers to resist discovery of unpublished material, and the showing required of an employer who seeks to compel a newsgatherer to identify employees alleged by the employer to have wrongfully disclosed its trade secrets. In part because of these issues and their implications for the privacy of internet communications, the First Amendment status of internet news sites, and the protection of trade secrets, the case has generated widespread interest within the technology sector, the digital information industry, internet content providers, and web and email users. The case also involves an attempt to undermine a claimed constitutional privilege, threatening a harm for which petitioners, if entitled to the privilege, have no adequate remedy at law.

[Update:] Why Apple is out of luck in light of the Stored Communications Act [SCA] (the Act, in essence, provides that "service providers may not disclose the contents of stored messages"):

Apple contends that compliance with a civil discovery subpoena falls within the SCA's exception for disclosures that 'may be necessarily incident . . . to the protection of the rights or property of the provider of that service . . . .' (18 U.S.C. § 2702(b)(5).) The argument apparently proceeds as follows: (1) Noncompliance with a subpoena would expose the service provider to contempt or other sanctions; (2) such exposure is a threat to the provider's rights or property; (3) therefore, compliance with a subpoena tends to protect the provider's rights or property. The first premise introduces a circularity by supposing that noncompliance with the subpoena can support legal sanctions. This premise is sound only where the subpoena is enforceable. A subpoena is not enforceable if compliance would violate the SCA. Any disclosure violates the SCA unless it falls within an enumerated exception to general prohibition. The exception posited by Apple necessarily presupposes that the disclosure falls within an exception. In logical terms, the antecedent assumes the consequents.

(Emphasis added.) And the court makes this excellent point later in the discussion, in response to Apple's assertion that noncompliance with a subpena must necessarily subject a service provider to sanctions: "[I]t is far from apparent that compliance with an invalid subpoena would save the provider any money, since it might expose the provider to a civil suit by an aggrieved user. (See 18 U.S.C. § 2707(e).) There is no reason to suppose that the defense of such a suit would be less expensive than resistance to an invalid subpoena."

[Update:] No implied SCA exception for civil discovery. This is a big deal, particularly for providers and users of hosted and/or Web mail:

[The SCA] clearly prohibits any disclosure of stored email other than as authorized by enumerated exceptions. Apple would apparently have us declare an implicit exception for civil discovery subpoenas. But by enacting a number of quite particular exceptions to the rule of non-disclosure, Congress demonstrated that it knew quite well how to make exceptions to that rule. The treatment of rapidly developing new technologies profoundly affecting not only commerce but countless other aspects of individual and collective life is not a matter on which courts should lightly engraft exceptions to plain statutory language without a clear warrant to do so. We should instead stand aside and let the representative branch of government do its job. Few cases have provided a more appropriate occasion to apply the maxim expressio unius exclusio alterius est, under which the enumeration of things to which a statute applies is presumed to exclude things not mentioned.

[Update:] Here's Eugene Volokh on the journalist's privilege portions of the decision.

[Update:] This is a very pro-privacy decision as far as hosted email is concerned. Here's the court on Congressional intent re the SCA: "Congress thus sought not only to shield private electronic communications from government intrusion but also to encourage 'innovative forms' of communication by granting them protection against unwanted disclosure to anyone. In the absence of a degree of privacy at least roughly comparable to that accompanying more traditional modes of communication, potential users might be deterred from using the new forms merely out of a feared inability to communicate in confidence." Also: "[I]t would be far from irrational for Congress to conclude that one seeking disclosure of the contents of email, like one seeking old-fashioned written correspondence, should direct his or her effort to the parties to the communication and not to a third party who served only as a medium and neutral repository for the message." Additionally:

Congress could quite reasonably decide that an email service provider is a kind of data bailee to whom email is entrusted for delivery and secure storage, and who should be legally disabled from disclosing such data in response to a civil subpoena without the subscriber's consent. This does not render the data wholly unavailable; it only means that the discovery must be directed to the owner of the data, not the bailee to whom it was entrusted.

[Update:] More from the privacy discussion, distinguishing Jessup-Morgan v. America Online, Inc., a case where the identity of an anonymous poster to a message board was permissible under the SCA:

News sites such as petitioners' reflect a kind and degree of editorial control that makes them resemble a newspaper or magazine far more closely than they do the primordial discussion systems that gave birth to the term 'post' by analogy to the physical bulletin boards they were named and patterned after. . . . The ability to post the articles at issue here rested entirely in petitioners and their fellow staff members. It was they, and no one else, who 'posted' the content of which Apple complains. Apple's attempt to secure copies of their correspondence thus bears no resemblance to the disclosures sought in Jessup-Morgan, which sought only the identity of a subscriber who had in fact posted offending material for the public to read.

[Update:] The California shield law compels a protective order. "The shield law is intended to protect the gathering and dissemination of news, and that is what petitioners did here." "Acts of journalism" indeed:

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, which is to identify the best, most important, and most valuable ideas not by any sociological or economic formula, rule of law, or process of government, but through the rough and tumble competition of the memetic marketplace.

The court rejected Apple's argument that publishing "verbatim copies" of internal information cannot constitute legitimate journalism because it assertedly involves "no editorial oversight:" "The shield exists not only to protect editors but equally if not more to protect newsgatherers. The primacy Apple would grant to editorial function cannot be justified by any rationale known to us." Moreover, it should be self-evident in the digital age that simply deciding what to publish is indeed an editorial act (note this court gets the impact of attention on journalism):

[A]n absence of editorial judgment cannot be inferred merely from the fact that some source material is published verbatim. It may once have been unusual to reproduce source materials at length, but that fact appears attributable to the constraints of pre-digital publishing technology, which compelled an editor to decide how to use the limited space afforded by a particular publication. This required decisions not only about what information to include but about how to compress source materials to fit. In short, editors were forced to summarize, paraphrase, and rewrite because there was not room on their pages to do otherwise. [¶] Digital communication and storage, especially when coupled with hypertext linking, make it possible to present readers with an unlimited amount of information in connection with a given subject, story, or report. The only real constraint now is time–the publisher's and the reader's. From the reader's perspective, the ideal presentation probably consists of a top-level summary with the ability to 'drill down' to source materials through hypertext links. The decision whether to take this approach, or to present original information at the top level of an article, is itself an occasion for editorial judgment. Courts ought not to cling too fiercely to traditional preconceptions, especially when they may operate to discourage the seemingly salutary practice of providing readers with source materials rather than subjecting them to the editors' own 'spin' on a story.

Persons who post information on a Web site are proper candidates for shield law protection. "[T]he open and deliberate publication on a news-oriented Web site of news gathered for that purpose by the site's operators" is the publication of news, while "the deposit of information, opinion, or fabrication by a casual visitor to an open forum such as a newsgroup, chatroom, bulletin board system, or discussion group" may (but need not necessarily) be something else.

California's shield law applies to every "publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication." Web sites like those in this case are a "newspaper, magazine, or other periodical publication" as used in the statute. "Petitioners' Web sites are not only 'publications' under various sources we have noted but also bear far closer resemblance to traditional print media than do television and radio. They consist primary of text, sometimes accompanied by pictures, and perhaps occasionally by multimedia content." "[The legislature] must have intended that the statute protect publications like petitioners', which differ from traditional periodicals only in their tendency, which flows directly from the advanced technology they employ, to continuously update their content. [¶] We conclude that petitioners are entitled to the protection of the shield law, which precludes punishing as contempt a refusal by them to disclose unpublished information."

[Update:] Here's EFF on its Huge Win for Online Journalists' Source Protection. And Wired Blogs: Apple Loses Bid to Unmask Bloggers' Sources.

[Update:] Note 21 discusses the court's reasoning in not restricting its reasoning to various "neologisms" (blog, etc.) that describe different forms of Web publishing. Whether something is called a blog, an ezine, etc. should not be outcome determinative in the court's analysis.

[Update:] Online journalists are entitled to the conditional privilege arising from consitutional guarantees of a free press. Divulging confidential sources can only be compelled when there is a "need sufficient to overbalance the inhibitory effect of such disclosure upon the free flow of ideas and information which is the core object of our guarantees of free speech and press." The petitioners are entitled to the privilege, and Apple failed to show a need sufficient to overcome it.

Re entitlement to the privilege, "[W]e can see no sustainable basis to distinguish petitioners from the reporters, editors, and publishers who provide news to the public through traditional print and broadcast media. It is established without contradiction that they gather, select, and prepare, for purposes of publication to a mass audience, information about current events of interest and concern to that audience." "If their activities and social function differ at all from those of traditional print and broadcast journalists, the distinctions are minute, subtle, and constitutionally immaterial."

Re Apple's failure to meet its burden: "Apple has failed to demonstrate that it cannot identify the sources of the challenged information by means other than compelling petitioners to disclose unpublished information. This fact weighs heavily against disclosure, and on this record is dispositive."

[Update:] Here's Jeff Lewis, of amicus the Bear Flag League.

[Update:] Some final thoughts:

If Apple opts to seek review by the California Supreme Court, its petition should be due the first week of July (I get July 5). Review is rarely granted, generally only when necessary "to secure uniformity of decision or to settle an important question of law." (CRC 28(b)) This strikes me as a well-reasoned and thorough decision, and one where securing review poses a significant challenge.

Though the media coverage of the opinion is bound to focus on the shield law and constitutional protections here extended to online journalists, in this era of ubiquitous use of email services originating with third parties the portions of the decision applying the Stored Communications Act might well have even broader impact.

[Update:] Coverage from Red Herring; Techdirt; Slashdot;; Macworld; the Mercury News; AP.

[Update]: Here's Joe Gratz on the court's extensive citation of Wikipedia (and why it works here). Also, Joe catches something utterly delightful I missed in my initial my run-through. Here's Joe:

I think it's also worth noting that the Breakout, Asteroids, and Arkanoid [Wikipedia] articles were cited in the court's discussion of a purportedly revealing pun – the project was called 'Asteroid,' and it was a 'Breakout' box. The opinion rightly notes that this correlation is illusory, since it was Arkanoid, not Asteroids, that was a clone of Breakout. It just makes me proud. California: Our Appellate Clerks Are Even Geekier Than Our Tech-Rumor Bloggers.

(Emphasis added.) Love it!

[Update:] At the risk of stating the obvious (especially in light of Joe's observation, above), this is a very tech savvy opinion. It's worth mentioning the Sixth District of the California Court of Appeal (from which this decision emanates) sits in San Jose. The opinion was authored by Presiding Justice Conrad L. Rushing, joined by Associate Justices Premo and Elia.

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