Weekend Question 2: How Important Was Yesterday’s Apple vs. “Does” Online Journalism Decision?

Answer: This was a VERY BIG Win for online journalism (multiple HTs to Instapundit).

It also gives me great pleasure to report that the decision yesterday was also a big defeat for the company about which I often say: “It’s a good thing for them that they make great computers, because their non-techie management is so arrogant and out of touch they’d be out of business in 90 days if they didn’t.”

This is from the defense in this case, the Electronic Frontier Foundation (HT The Apple Core blog of PowerPage, one of the defendants):

The case began when Apple Computer sued several unnamed individuals, called “Does,” who allegedly leaked information about an upcoming product to online news sites PowerPage and AppleInsider. As part of its investigation, Apple subpoenaed Nfox — PowerPage’s email service provider — for communications and unpublished materials obtained by PowerPage publisher Jason O’Grady.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.

But Friday, the court said that O’Grady is protected by California’s reporter’s shield law, as well as the constitutional privilege against disclosure of confidential sources. The court also agreed with EFF that Apple’s subpoena to email service provider Nfox was unenforceable because it violated the federal Stored Communications Act, which requires direct subpoenas of account holders.

“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.”

The judges went further (this paragraph precedes those in the above excerpt at the EFF link):

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 memetic marketplace.”

This is great news. Take that, Apple.

This decision is important to me personally because my posts (here and here) about February’s Hamilton County Republican Party Primary endorsement meeting would not have had the support that they did without my ability to get anonymous confirmation from several sources that the “kangaroo script” I obtained from that meeting was indeed used, and that it was accurate. Had any of those involved thought that their responses to me might have been subpoenaed by a paranoid Republican leadership (I know, the phrase is redundant), that story would not have been as credible.

This poorly written comment at The Apple Core blog claims that “Apple’s legal team is regrouping” (This story is not over. Non disclosure agreements mean what it says.”), but Denise Howell at Bag and Baggage believes the decision will stand:

If Apple opts to seek review by the California Supreme Court, its petition should be due the first week of July (I get July 5). Review is rarely granted, generally only when necessary “to secure uniformity of decision or to settle an important question of law.” (CRC 28(b)) This strikes me as a well-reasoned and thorough decision, and one where securing review poses a significant challenge.

The decision (PDF) is here. Lots more background is here. Interested-Participant also chimes in.
_____________________________

UPDATE: From Lauren Gelman at Stanford — “This is a *huge* win! Now journalists can feel safe knowing that they can protect their sources’ identity no matter in which medium they choose to disseminate news (as we argued in our amicus brief).”

UPDATE 2: Add this to the “it’s a good thing for them their computers are great” (but arrogance still has consequences) file — Amy Ridenour reports a horrible experience at an Apple Store in Maryland, where the clerks would not provide a stool for her son to try out a laptop. The bad news for Apple in her case is that it looks like they lost an easy sale.

It’s worth recalling at this point that a family attempt to buy a Mac using the education discount at the Apple Kenwood store was thwarted when they required that the student be present (”But what if it’s a surprise gift?” was not persuasive, and a store sale was lost).

And to build on some thoughts Amy hinted at (remember, I’m saying this as a 21-year Mac user), some of the store clerks at Apple stores, particularly the so-called “geniuses,” are among the most arrogant people ever placed on this earth, and are a walking advertisement for why many in the PC/Windows community wouldn’t buy a Mac if it was the last computer on earth. And for what it’s worth, I’ve done the exact opposite of what these supposed “geniuses” have suggested on a couple of occasions, and saved mountains of data that would have been lost forever as a result (and I’m not very technically savvy by a long shot).
_____________________________

Wizbang Weekend Carnival participant.