Online journalists have the same rights to protect their sources' confidentiality as offline reporters, a California state appeals court ruled Friday. The court was responding to the Electronic Frontier Foundation's (EFF) petition on behalf of three online journalists sued by Apple Computer. Apple alleged the journalists leaked information about an upcoming product to online news sites PowerPage and AppleInsider.
The court's decision is "a victory for the rights of journalists, whether online or offline and for the public at large," EFF Staff Attorney Kurt Opsahl told reporters. "The court has upheld the strong protections for the free flow of information to the press and from the press to the public," Opsahl said.
In their decision, the judges wrote, "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 marketplace.
As part of its investigation into the leak of confidential information, Apple subpoenaed Nfox, PowerPage's email service provider for communications and unpublished materials obtained by PowerPage publisher Jason O'Grady. A trial court upheld the subpoena.
The court ruled Friday that O'Grady is protected bythe California Reporter's Shield Law, as well as the constitutional privilege against disclosure of confidential sources. The court agreed with EFF's claim that Apple's subpoena to Nfox, the email service provider was unenforceable, as it violated the federal Stored Communications Act. The act requires that account holders must be subpoenaed directly.
"In addition to being a free speech victory for every citizen reporter who uses the Internet to distribute news, today's decision is a profound electronic privacy victory for everyone who uses email," said EFF Staff Attorney Kevin Bankston. "The court correctly found that under federal law, civil litigants can't subpoena your stored email from your service provider."