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Legal Bytes: Do Shield Laws Extend to Bloggers?
By John Brewer, member of the Computer Club of Oklahoma City 
johnb(at)jnbrewer.com
http://www.ccokc.org/

The first amendment to the US Constitution contains a number of important personal rights. It reads as follows: “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.” Analysis of the amendment confirms why the courts have been given the task of interpreting the language through the years.

One of the important parts of the amendment is freedom of the press. In order to protect the press, approximately 31 States have enacted “shield laws.” Journalists are protected by a qualified (limited) First Amendment right protect their confidential sources. Many of the federal circuits have held that a qualified privilege exists. However, journalists are frequently challenged to reveal their confidential sources. This privilege has received attention recently in the New York Times Co. v. Gonzales case that involves the phone records of Judith Miller. An interesting variation to this issue is whether Internet journalists have the same protection as print journalists. A recent case in California has examined this issue. The case involved some Internet web site and Apple Computer.

Apple brought an action in California alleging that persons unknown caused the wrongful publication of secret plans on the World Wide Web 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. A California Court of Appeals held that his was error because (1) the subpoena to the email service provider could 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with the plain terms of the federal Stored Communications Act (18 U.S.C. §§ 2701-2712); (2) any subpoenas seeking unpublished information from petitioners would be unenforceable through contempt proceedings in light of the California reporter’s shield [note: California has a shield provision in the State Constitution] and (3) discovery of petitioners’ sources is also barred on this record by the conditional constitutional privilege against compulsory disclosure of confidential sources. The Court of Appeals issued a protective order.

The Electronic Frontier Foundation is directly involved in the litigation. The following is extracted from the EFF web site. “The whole mess began in December 2004, when Apple filed suit against 20 unnamed and presumably unknown individuals, referred to in the court filing as "Does," for leaking confidential materials on an Apple product under development to several Web publications. As part of its investigation, Apple subpoenaed Nfox -- for communications and unpublished materials obtained by PowerPage publisher Jason O'Grady. A Santa Clara trial court upheld the subpoena in March of 2005 and the EFF appealed.

“In a 69-page ruling, the 6th District Court of Appeal ruled that bloggers and webmasters are no different in their protections than a reporter and editor for a newspaper. "We can think of no workable test or principle that would distinguish 'legitimate' from 'illegitimate' news," the judges wrote.

"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," they wrote.

"Today's decision is a victory for the rights of journalists, whether online or offline, and for the public at large," said EFF Staff Attorney Kurt Opsahl in a statement. Opsahl argued the case before the appeals court last month. "The court has upheld the strong protections for the free flow of information to the press, and from the press to the public."

“Apple argued its right to trade secrets trumped Constitutional rights, and it had exhausted other sources to determine the source of the information, even though Apple had not deposed employees who were in a position to know, Kevin Bankston, a staff attorney for the EFF told internetnews.com. The lower court decision agreed, and said Apple's trade secrets rights would trump any journalist's rights to source confidentiality.

“Bankston said the ruling is a win for anyone who uses email. "A lot of people will hear about this decision and think it doesn't affect them since they are not journalists, but it has a broader impact because of the number of email providers, particularly the number based in this district," he said.

“The court read Federal privacy law to forbid civil litigants like Apple from subpoenaing an individual's e-mail from e-mail providers. Instead, the court said civil litigants must subpoena you directly, and if you are a journalist, you can assert your rights of confidential sources.

"So they have to subpoena you rather than doing an end run around your rights and going straight to your e-mail provider," said Bankston.

If Apple chooses to appeal, the case goes to the state Supreme Court. Thus far, the sources for the original story have not been revealed, "and hopefully based on this decision they never will," said Bankston.

This is an interesting issue. The California case is far from over and this issue will continue to be litigated across the country.
 
John Brewer practices law in Oklahoma City, is a member of the Governor’s and Legislative Task Force for E-Commerce, and enjoys issues relating to eBusiness and cyberspace. Comments and questions are welcome and can be emailed to johnb(at)jnbrewer.com.

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