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March 6, 2005
The Second Front In The War On Bloggers

Michelle Malkin has been covering what looks to be a second front in a semi-coordinated war on bloggers and online speech -- launched by Apple Computers, of all people, the same company who twenty-one years ago advertised itself as a bulwark against Big Brother. In another attempt to strip blogs of any identity as journalism and to suppress the speech within, Apple has sued three bloggers in an effort to reveal their sources regarding the unauthorized release of information about an upcoming product. The court on Friday ruled that Apple must be told who gave the information or the bloggers can be held in contempt of court:

In a case with implications for the freedom to blog, a San Jose judge tentatively ruled Thursday that Apple Computer can force three online publishers to surrender the names of confidential sources who disclosed information about the company's upcoming products.

Santa Clara County Superior Court Judge James Kleinberg refused to extend to the Web sites a protection that shields journalists from revealing the names of unidentified sources or turning over unpublished material. ...

The case raises issues about whether those who write for online publications are entitled to the same constitutional protections as their counterparts in more traditional print and broadcast news organizations.

Apple sought subpoenas in December against two online news sites that focus exclusively on its products: PowerPage (www.power page.org) and Apple Insider (www.appleinsider.com). The company filed a separate suit against Think Secret (www.thinksecret.com) on Jan. 4.

Let's skip, for the moment, the fact that suing your own fans and customers -- for that's who runs these sites -- doesn't exactly make for a sound customer service policy. What has happened here isn't a high crime or a misdemeanor, and it's unlikely to be considered industrial espionage since the information immediately went public. It didn't contain trade secrets, such as programming code; the information released would be the same used for a product launch. Apple just didn't want it released at the time. That is a civil issue regarding non-disclosure agreements between itself and its employees, which hardly creates a situation that rises to the level of a compelling interest on behalf of the state that allows it to infringe on anyone's speech, let alone established online publication. Besides, as the AP notes, Apple hasn't yet launched a decent internal investigation; it hasn't even attempted to depose its own employees with access to the information to determine who squealed.

This makes it more similar to the Valerie Plame case as it stands now than it did when it started. It has become clear that no laws were actually broken in the Plame case, as the outing of Plame did not fall under the language of the statute. Under those circumstances, pursuing the case against Judith Miller and Matthew Cooper for not revealing their sources is an injustice and should be halted. Had such a serious law actually been breached -- had national security actually been at stake -- then prosecuting Miller and Cooper would make sense. The same applies to the Apple bloggers here.

Apple has been plagued by leaks on its products for decades, and probably in their struggling days, launched a few on purpose to get buzz going in the marketplace. So why are they so exercised over "Asteroid" (and who was the genius that gave a development product the same name as an ancient arcade game, anyway?) and its mention to the public? Because, unlike their persona as the anti-Orwellian upstart, they fear the loss of control over information to the blogosphere, where their customers increasingly go to await updates on their products.

In this case, unlike the FEC, the situation drips with irony. Essentially, as I mentioned at first, these sites truly represent Apple's best customers -- the ones who buy all their products and have such brand loyalty that they hang out in the blogosphere to acquire any sniff of new information. The bloggers themselves represent the cream of that crop, as they not only love and purchase the product but aggregate the customers to what becomes massive word-of-mouth advertising sites. In the clichd phrase, you just can't buy advertising like that. With all of that benefit comes power, power outside the control of the corporate grasp, and Apple has decided that it wants to be a Big Brother corporation after all, instead of understanding and promoting the new dynamic.

Unfortunately for us bloggers, the courts want to throw in with the corporations. Like the FEC, they want to distinguish between old-line media and on-line media by denying that we provide the same function and the same practices, but that we do it for reasons other than profit. If the BCRA as managed by the FEC intends on being the Incumbency Protection Act, then Apple v. Does represents the Corporate Protection Act -- and both serve to protect the franchise of old-line media. Both protections come at the expense of free speech, and at the expense of bloggers.

I don't buy Apple products in any case. I've always been in the PC world. I'll tell you this, however: in the face of this attack, I would rethink my entire network architecture had I been an Apple user. Perhaps others in the blogosphere should start moving away from Apple, and explain why.

UPDATE: The excellent blog Shape of Days vehemently disagrees with me on this one. Be sure to read why. I would challenge his overall argument by saying that if Apple can't even bother to depose its own employees before chasing after the bloggers -- who didn't actually break any agreement with Apple, after all -- it certainly points to a different motivation than simply protecting the stock price. However, he is correct that Apple needs to protect its shareholders. Perhaps it should do that by pursuing those who violated their agreements rather than the bloggers who reported it.

UPDATE II: It's worth noting, too, that while Jeff makes good points about Apple's beef with Nick Ciarelli, this ruling doesn't apply to the case against Ciarelli. That case is a separate lawsuit. Ciarelli has nothing to do with the other sites involved, although the Does are named in all three lawsuits.

Sphere It Digg! View blog reactions
Posted by Ed Morrissey at March 6, 2005 9:18 AM

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» Can we dial down the rhetoric, please? from The Shape of Days
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» McCain-Feingold Has Dire Consequences For Blogs from A Bellandean! God, Country, Heritage
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