Protection extended to Blogosphere in Apple v. Does

Apple v. Does, a California 6th District Court of Appeal ruling, just extended 1st Amendment style protections to un-named bloggers. Apple Computer sought to identify the bloggers who had leaked what it identified as trade secrets on upcoming new products. The trial judge allowed the discovery. The Court of Appeal issued a protective order. The link in the title is to Nick Anthis' Scientific Activist blog; tip of the hat, Nick!

Here is the ratio decidendi for overrulling the trial court:

The publishers [bloggers] 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with the plain terms of the federal Stored Communications Act (18 U.S.C. §§ 2701-2712); (2) any subpoenas seeking unpublished information from petitioners would be unenforceable through contempt proceedings in light of the California reporter’s shield (Cal.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.

The beautiful colored pencil apple illustration by Boyd Purdom is from www.minnesotaschoolofbotanicalart.com

Here are some links (many from Nick):

Wikipedia article with history of case: link

EFF FAQ link

San Jose Mercury News article link

EFF PDF of decision link

GPO Access links for the federal Stored Communications Act
18 USC section 2701 link
18 USC section 2702 link
18 USC section 2703 link
18 USC section 2704 link
18 USC section 2705 link
18 USC section 2706 link
18 USC section 2707 ** Civil Action link
18 USC section 2708 ** Access to stored information link
18 USC section 2709 link
18 USC section 2710 link
18 USC section 2711 ** Definitions link
18 USC section 2712 link

California Constitution, Article I, Section 2, Subdiv. b (Reporter's Shield) link

California Evidence Code Section 1070 link

Mitchell v. Superior Court (CA, 1984) 37 Cal.3d 268 link Rats! I tested this link and it doesn't work. I found it free on www.Findlaw.com, which is free, but you have to register. Go to CASES & CODES, and you should turn it up with the name and citation of the case.

Ambrogi's LawSites link

BoingBoing note link

First Amendment Project: Protecting Unpublished Information and Confidential Sources (including a handbook on the California Reporter's Shield Law) link

California Discovery & Reporter's Shield Law webpage link