Apple v. Does

In May 2006, a California state appeals court ruled in favor of the Electronic Frontier Foundation's petition on behalf of three online journalists, holding that the online journalists have the same right to protect the confidentiality of their sources as offline reporters do.

In December 2004, Apple filed Apple v. Does, a lawsuit in Santa Clara county against unnamed individuals who allegedly leaked information about new Apple products to several online news sites, including AppleInsider and PowerPage. The articles at issue concerned a FireWire audio interface for GarageBand, codenamed "Asteroid" or "Q7." In addition, Apple filed a separate trade secret suit against Think Secret on January 4, 2005.

EFF, along with co-counsel Thomas Moore III and Richard Wiebe, successfully represented the online journalists and protected their anonymous sources.

Apple had been seeking information from these news sites regarding the identities of the sites' sources, and has subpoenaed Nfox.com, the email service provider for PowerPage, for email messages that might have identified the confidential source.

EFF opposed Apple's discovery because the confidentiality of the media's sources and unpublished information are critical means for journalists of all stripes to acquire information and communicate it to the public. Because today's online journalists frequently depend on confidential sources to gather material, their ability to promise confidentiality is essential to maintaining the strength of independent media. Furthermore, the protections required by the First Amendment are necessary regardless of whether the journalist uses a third party for communications.

On May 26, 2006, the California Court of Appeal granted the online journalists' petition and provided the journalists with protection against Apple's subpoenas. In O'Grady v. Superior Court, 139 Cal.App.4th 1423 (Cal.App. 2006), the Court summarized the unanimous decision as follows:

Apple Computer, Inc. (Apple), a manufacturer of computer hardware and software, brought this action alleging that persons unknown caused the wrongful publication on the World Wide Web of Apple’s secret plans to release a device that would facilitate the creation of digital live sound recordings on Apple computers. In an effort to identify the source of the disclosures, Apple sought and obtained authority to issue civil subpoenas to the publishers of the Web sites where the information appeared and to the email service provider for one of the publishers. The publishers moved for a protective order to prevent any such discovery. The trial court denied the motion on the ground that the publishers had involved themselves in the unlawful misappropriation of a trade secret. We hold that this was error 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)). Accordingly, we will issue a writ of mandate directing the trial court to grant the motion for a protective order.