EFF: Huge Win for Online Journalists' Source Protection

Electronic Frontier Foundation Media Release

For Immediate Release: Friday, May 26, 2006

Contact:

Kevin Bankston
   Staff Attorney
   Electronic Frontier Foundation
   bankston@eff.org
   +1 415 436-9333 x126

Kurt Opsahl
   Staff Attorney
   Electronic Frontier Foundation
   kurt@eff.org
   +1 415 436-9333 x106

Huge Win for Online Journalists' Source Protection

EFF Arguments Secure Reporters' Privilege for Internet News
Gatherers

San Jose - A California state appeals court ruled in favor
of the Electronic Frontier Foundation's (EFF's) petition on
behalf of three online journalists Friday, holding that the
online journalists have the same right to protect the
confidentiality of their sources as offline reporters do.

"Today's decision is a victory for the rights of
journalists, whether online or offline, and for the public
at large," said EFF Staff Attorney Kurt Opsahl, who argued
the case before the appeals court last month.  "The court
has upheld the strong protections for the free flow of
information to the press, and from the press to the
public."

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."

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-- for communications and unpublished materials obtained by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."

EFF worked with co-counsel Thomas Moore III and Richard
Wiebe in this case.

For the full decision in the case:
http://www.eff.org/Censorship/Apple_v_Does/H028579.pdf

For more on Apple v. Does:
http://www.eff.org/Censorship/Apple_v_Does/

For this release:
http://www.eff.org/news/archives/2006_05.php#004697

About EFF

The Electronic Frontier Foundation is the leading civil
liberties organization working to protect rights in the
digital world. Founded in 1990, EFF actively encourages and
challenges industry and government to support free
expression and privacy online. EFF is a member-supported
organization and maintains one of the most linked-to
websites in the world at http://www.eff.org/


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