Newsday reports:
. . . The Electronic Frontier Foundation said yesterday it would defend bloggers’ right to protect anonymous sources who disclosed that Apple would release a product code-named “Asteroid.”
A lawyer for the group said it’s one of the first cases nationwide, if not the first case, that would address whether Web loggers, or bloggers, can protect confidential sources. Apple filed the suit last week in California.
The conflict began after two bloggers disclosed on their Web sites in November that Apple would release the so-called “Asteroid,” an add-on that would supposedly allow musicians to hook up analog musical instruments to Macintosh computers. Apple then sued the “John Does” for violating trade secret laws by disclosing the information to the bloggers, and the computer maker issued subpoenas to the bloggers to find out the identities of the John Does.
The bloggers shouldn’t have to disclose the anonymous sources, said Kurt Opsahl, staff attorney for the foundation.
“In this case, they’re very clearly journalists,” he said. . . .
EFF, I suspect, will be claiming a privilege under the First Amendment, but such a privilege is “qualified” rather than absolute — it’s unavailable if a judge finds that the information is really necessary to an important case, and there are no other ways of getting it. Also, whether such a privilege even exists under the First Amendment is hotly disputed. I think the Supreme Court rejected it in 1972. Since then, though, many federal court of appeals decisions, including some in the Ninth Circuit, have accepted it (based on what I think is a misreading of the Court’s opinion), and the Court hasn’t stepped in to overrule them; on the other hand, two other federal courts of appeals have rejected the privilege, as has one decision in the Ninth Circuit. So the federal privilege claim has problems.
But EFF will also be claiming a privilege under article 1, section 2(b) of the California Constitution, which is quite explicit:
b) A publisher, editor, reporter, or other person connected with or employed upon a newspaper, magazine, or other periodical publication, or by a press association or wire service, or any person who has been so connected or employed, shall not be adjudged in contempt by a judicial, legislative, or administrative body, or any other body having the power to issue subpoenas, for refusing to disclose the source of any information procured while so connected or employed for publication in a newspaper, magazine or other periodical publication . . . .
So if a blog is considered a “periodical publication” — which most blogs are (the exact “period” in the sense of interval between posts isn’t fixed, as it is for a newspaper, but they are “periodical” in the sense that they publish repeatedly, and are usually expected to have new material at least as often as many standard periodicals) — then it sounds like they have an open-and-shut case. We don’t even have to ask whether bloggers are “journalists”; so long as they are “person[s] connected with . . . [a] periodical publication,” they are entitled to disregard subpoenas that call on them “to disclose the source of any information procured while so connected . . . for publication in . . . [a] periodical publication.”
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