Apple vs the media - and ISPs, now

A collection of media organisations has urged a California appeals court to overturn a ruling that would allow Apple Computer to subpoena records from a Mac enthusiast site.

The "friend of the court" filing follows a decision last month by a California superior court judge who ruled that Apple could subpoena the email records of PowerPage in an attempt to uncover who at Apple leaked confidential information about an unreleased music hardware device code-named Asteroid. The judge's ruling is being appealed by the Electronic Frontier Foundation on behalf of three online journalists whose records Apple is seeking.

"Punishing journalists who did not illegally obtain access to trade secrets for publishing information on a matter of public interest would impair the news media's ability to report on the activities of corporations and other businesses," the media groups said in a brief filed on Friday. "The result will be a restriction in the flow of information to the public, inhibiting the public's ability to make informed choices related to government, industry, health and a host of other subjects that affect people's everyday lives."

The 36-page brief was authored by Grant Penrod of the Reporters Committee for the Freedom of the Press and signed by the Associated Press, the California First Amendment Coalition, the California Newspaper Publishers Association, Copley Press, Freedom Communications, Hearst, the Los Angeles Times, McClatchy, the San Jose Mercury News, the Society of Professional Journalists and the Student Press Law Center.

In the case in question, Apple is not suing the Mac sites themselves but rather the unnamed individuals who leaked the information. However, the computer maker is seeking to obtain records from AppleInsider and PowerPage in order to learn the identities of the leakers. In a separate case, Apple is directly suing the publisher of ThinkSecret for the site's role in the disclosure of trade secrets.

In addition to the filing by the media organisations, two internet industry groups, US Internet Industry Association and NetCoalition, filed a brief saying that to force an internet service provider to turn over such records would violate the federal Stored Communications Act. The brief notes that the trial court did not have the perspective of the ISP because PowerPage's service provider, Nfox, did not object to the subpoena.

"The right to send and receive content over the internet and associate electronically in a manner of one's choosing, without having one's identity and private communications revealed to third parties, is at the core of the protections of the First Amendment," the groups wrote in their brief.

An Apple representative declined to comment specifically on the new briefs but reiterated the company's overall position that Apple's "DNA is innovation" and that "the protection of trade secrets is critical for its success".

In a posting on its website, the EFF applauded the filings, saying that "the coalition of newspapers and media organisations recognised that the trial court's disregard for the First Amendment would broadly chill reporting by all journalists, regardless of medium".

"The internet industry's support illustrates the widely accepted rule that email service providers are prohibited by federal law from disclosing users' private email in civil disputes," added EFF attorney Kevin Bankston.

Ina Fried writes for CNET News.com.