Apple's Inquisition?

Apple's principle problem now is that it does not know the identity of the parties it is suing. That is why the company has issued subpoenas to legally force PowerPage and AppleInsider to disclose who gave them the scoop.

But under California law, in order to benefit from the trade secret statute, Apple must show that it has made "reasonable efforts," to "maintain its secrecy." The trade secret law is what might allow the company to subpoena PowerPage and AppleInsider journalists, which Apple maintains were not undertaking an investigative reporting function "in the manner of a legitimate news outlet."

To show that Apple made "reasonable efforts" to discover the source of the leaked information, Apple in one of its motions said it traced the "documentary source" of the product information posted on the PowerPage and AppleInsider Web sites and "identified the Apple personnel who accessed that document," which resulted in more than 25 interviews. After making what Apple calls "reasonable efforts," the company was unable to determine who leaked the information, the company maintains.

Not About Blogs

Recently, some mainstream news publications have incorrectly reported that Apple is attempting to subpoena blog journalists. Indeed, while the ruling may have implications on blog reporting, AppleInsider and PowerPage are far from blog-only publications. Instead of personal, journal-like content, these publications offer features, how-to information and news in a format similar to web sites that complement print publications.

"You can distinguish [PowerPage and AppleInsider] from what most people think of as blogs," Opsahl says.

But even blogs should be afforded journalistic privilege protections, Opsahl says. "It should be a functional test of who is a journalist," Opsahl says. "It doesn't matter whether it is a blog, a print site, an online news site or a print publication, the question is: are they engaged in news gathering and news publication, which is what makes a journalist."

Conclusion

If the court determines that Apple is right, will the company, as well as others, have the legal backing to force journalists to divulge who gives them pre-launch product information?

Even if Apple does not succeed in forcing the journalists to reveal who gave them the inside scoop about its Asteroid product launch, Apple has shown those who might serve as journalistic sources that it will use its significant corporate resources to sue - even though the company claims that PowerPage and AppleInsider are not legitimate news outlets.

"At this point, we are just waiting to hear from the court. There are a lot of different ways this can go, and of course we remain hopeful that the court will end up protecting these journalists," Opsahl says. "There are reasons to be concerned here and there are reasons to follow this very carefully, but until we get the court's decision and know what the court's reasoning was, there are so many different possibilities that it is hard to discuss any one in particularity."

If Apple does get its subpoena, what does the EFF plan to do then? "[The court] will explain its reasoning and we intend to then seek appellate review, and get this resolved before the court of appeal," Opsahl says.