Law Lounge

The problem with cases pertaining to cyber law statutes or information technology is that before cases set to become precedent there comes reversal decision or similar suit which bars a landmark case to set good precedent.

Well both these cases { Apple subpoena & O’ grady} still have long way to be taken serious note in virtual front as until now the protection is granted to ISP, bloggers, publishers (etc) against disclosing their identity on basis of the First Amendment and the correlative provisions of the California Constitution. Through its decision court eased the burden over ISPs which will help in development of this mode of communication.#

O’Grady v. Superior Court
139 Cal. App. 4th 1423, 2006 WL 1452685 (Cal. App. , 6th Dist., May 26, 2006)

Reversing the court below, the California Court of Appeals holds that the Stored Communications Act prohibits an ISP that hosted a blog’s email account from disclosing e-mails sent to the blog in response to a subpoena issued in a civil litigation. The subpoena sought production of e-mails that would permit Apple Computer (”Apple”) to identify the individual(s) who transmitted trade secret information about an as yet unreleased Apple product to the blog/website Power Page, which information was the source of articles Power Page subsequently published on its blog/website.#

The Court further held that petitioners, who acted as publishers of, and/or editors or reporters for, the news blogs that published the stories at issue about this Apple product, were entitled to a protective order against their disclosure of the confidential sources of their stories. The Court held that the Shield Law, which prohibits a court from holding in contempt a publisher, editor or reporter of “a newspaper, magazines or other periodical publication” for failing to disclose the source of a published story, protected petitioners, publishers and/or reporters of news blogs, from having to disclose the sources of the stories at issue. The First Amendment similarly provided protection, given Apple’s failure to fully exhaust other avenues of disclosure before pursuing discovery from petitioners.#

As interpreted by the California Supreme Court in Mitchell v. Superior Court, 37 Cal.3d 268, 208 Cal. Rptr. 152 (1984), “in a civil action, a reporter, editor or publisher has a qualified privilege to withhold disclosure of the identity of confidential sources … The scope of that privilege in each particular case will depend upon the consideration and weighing of a number of interrelated factors.”These factors include:

· the nature of the litigation and whether the reporter is a party;

· the relevance of the information sought to plaintiff’s cause of action, with disclosure being denied unless the information goes to the heart of the plaintiff’s claim;

· whether the party seeking disclosure has exhausted all alternative sources of obtaining the needed information;

· the importance of protecting confidentiality of the source in the case at hand, and

· the demonstrated strength of the plaintiff’s case on the merits.

The Court held that petitioners, as publishers, editors and/or reporters for the blog/websites at issue, were entitled to the protections afforded by the First Amendment. Said the Court.

That protection barred Apple from pursuing petitioners for discovery of their sources due to Apple’s failure to demonstrate to the Court’s satisfaction that the requested information could not be obtained from other sources

Court questioned the Evidence produced by Apple .The Court noted that Apple had failed to question its employees under oath. Similarly, Apple had failed to disclose to the Court the manner in which it had internally distributed the “slide stack,” or to discuss what forensic computer investigation it had undertaken of such things as work station logs or file transfer protocol logs, to ascertain the source(s) of its internal leaks. The Court was also critical of Apple’s failure to pursue two sources of information identified in the stories themselves, to ascertain their source(s) of information concerning “Asteroid,” as well as Apple’s failure to address the possibility that a “hacker” had obtained the data at issue from Apple’s computer network.

In its decision court materially relied on its determination that the petitioners were engaged in journalistic activities implicating important First Amendment concerns to override Apple’s desire to ascertain the identity of those involved in the misappropriation of its trade secrets. While the Court indicated it might be unwilling to afford those involved in publishing such trade secrets similar protections if they were published in an open forum such as a newsgroup, chatroom, bulletin board or discussion group, such was not the case here, where there was an “open and deliberate publication on a news oriented website of news gathered for that purpose by the site’s operators.”

Case courtesy: http://www.phillipsnizer.com/internetlib.htm

In this maiden post I think this case will be good to start with. The case is pioneer in helping to protect Trade secret information being illegally posted over internet especially through Blogs which have become major source of information for Corporates as well as internet users & on other hand protection of identity of publisher or blogger. But posting proprietary information of any product or a trade secret on name of whistle blower or journalist cannot protect the blogger or who so evr posted such information which is Right of a Corporate body to maintain its trade secret & good will. What underlies this decision is the publishing of information that at this early stage of the litigation fits squarely within the definition of trade secret.,,,but later appeal to the case reversed the said judgement in

O’Grady v. Superior Court
139 Cal. App. 4th 1423, 2006 WL 1452685 (Cal. App. 6th Dist., May 26, 2006)

Case : Apple Computer v. Doe 1, et al. Case No. 1-04-CV-032178 (Superior Ct., Ca., March 11, 2005), writ of mandamus granted, court directed to quash subpoena and issue protective order, 139 Cal. App. 4th 1423, 2006 WL 142685 (Cal. App., 6th Dist., May 26, 2006)

Facts: Apple commenced suit against various John Doe defendants (bloggers), individuals allegedly involved in improperly disclosing trade secrets. To assist in identifying these individuals, Apple served a subpoena on Nfox. Nfox provides e-mail service to the PowerPage blog. The subpoena sought, inter alia, e-mails that would permit Apple to identify the John Doe defendants who transmitted the trade secret information to PowerPage. Nfox did not object to the subpoena. PowerPage and other bloggers moved to quash the subpoena. Claiming they were journalists, the bloggers sought to quash the subpoena under California’s “Shield Law,” California Evidence Code §§1070(a) and (b). The Court denied their motion, and directed Nfox to comply with the subpoena.

Judgement: Court said , the “Shield Law” “affords only limited protection. It does not create a privilege for news people, rather it provides an immunity from being adjudged in contempt.” The Court also found support for its determination in the balancing test articulated by the California Supreme Court in Mitchell v. Superior Court, 37 Cal. 3d 268 (1984). Mitchell set forth a five part test to be used to balance the competing interests of civil discovery, on the one hand, and a reporter’s First Amendment privilege, on the other. Under this test, Courts examine: (1) the nature of the litigation and whether the reporter is a party; (2) whether the requested discovery goes to the heart of plaintiff’s claim; (3) whether other sources of the information sought have been exhausted; (4) the public good served by protecting the misappropriation of trade secrets; and (5) in the context of a defamation case, whether plaintiff can make a prima facie showing of falsity.

Applying this test, the balance favored granting Apple the requested discovery - it went to the heart of Apple’s claim, as it sought the identity of the defendants it wished to pursue; one or more of the bloggers possibly may become defendants in Apple’s suit.The Court found that Apple had made a prima facie case that a crime had been committed - namely a violation of California Penal Code §499(c) which prohibits the theft of trade secrets. Apple’s showing included a series of slides labeled “Apple Need-to-Know Confidential,” which the Court found were the source of the information in question. It should be noted that the Court did not rule on whether the bloggers were in fact journalists entitled to the protections of either California’s “Shield Law” or the First Amendment.

Case courtesy : http://www.phillipsnizer.com/internetlib.htm