Today, EFF Staff Attorney Kurt Opsahl argued the critical issues in Apple v. Does before a San Jose, California appeals court, telling a panel of three judges that denying confidential source protection to journalists -- whether online or offline -- would deliver a dangerous blow to all media.
The case started 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 As part of its investigation, Apple subpoenaed PowerPage's email service provider Nfox for communications and unpublished materials obtained by PowerPage publisher Jason O'Grady. A trial court denied a motion for an order protecting the journalists from the subpoenas, and the journalists appealed.
At the appeals court, Opsahl argued that the subpoena to Nfox violated the federal Stored Communications Act, which prohibits direct subpoenas of email communications held by email service providers. Opsahl also argued that O'Grady and other journalists are entitled to protect their confidential source information under both the California constitution and the U.S. Constitution.
The panel now has 90 days to come up with a ruling. The judges hearing the arguments asked tough questions and seemed to understand the high stakes for free speech in this case, and we are looking forward to their decision.
