In an important decision for bloggers' rights, the 6th District Court of Appeals has ruled in the case of O'Grady vs. Apple Computer. In their unanimous ruling they declared that bloggers are essentially indistinguishable from traditional journalists and enjoy the same legal protections.
This case originated with Apple Computer's efforts to track down employees who leaked information about software development projects to bloggers at AppleInsider, PowerPage and other sites. Apple attempted to use their deep pockets and the court system to force the bloggers to reveal their sources. The Electronic Frontier Foundation came to the defense of the sites which were under attack, and have pursued the issue on a pro bono basis through an initial ruling in favor of Apple in early 2005 to this ultimate ruling supporting the rights of bloggers.
In the course of the suit Apple attempted to subpoena Nfox.com the email service provider for PowerPage as well as two other email services for email messages which might have revealed the bloggers' source at Apple. The privacy of these communications became a central element of the case, with the EFF making an argument in favor of the essential right of privacy for the sources used by bloggers:
“The confidentiality of the media's sources and unpublished information are critical means for journalists of all stripes to acquire information and communicate it to the public.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.”
Apple's argument that their efforts were intended to protect trade secrets were rejected by the court which determined that basic Constitutional rights overruled the argument. The court's ruling was extremely forceful in laying out the absolute right of online journalists and bloggers to the same protections enjoyed by journalists in other media. It said, in part:
“”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.”
And went on to strongly reject the idea that there is a difference between bloggers and other journalists:
“In no relevant respect do they appear to differ from a reporter or editor for a traditional business-oriented periodical who solicits or otherwise comes into possession of confidential internal information about a company.”
As far as the court is concerned bloggers are legitimate journalists, or more specifically, there is no criteria for judging the legitimacy of one kind of journalist relative to another, so everyone deserves the same rights and protections.
This ruling provides protection not only for bloggers and their sources, but for all email users, because it means that any effort to get access to your email will have to go directly through you rather than through your email provider. If someone wants to find out what your email says they will have to call you to testify about it with a subpoena and you will be protected by the 5th amendment.
EFF Spokesman and staff attorney Kurt Opsahl concluded: “Today's decision is a victory for the rights of journalists, whether online or offline, and for the public at large.”