Do Bloggers receive the same "source" protection as mainstream journalists?

When Dan Rather announced his retirement this past fall, many viewers were not surprised. Just a few months before problems with his controversial CBS broadcast about President Bush's National Guard service had surfaced. And, it was not a traditional news source at the helm of the Rather exposé, but instead, a group of bloggers. Bloggers as you may know are individuals who use the web to post their personal thoughts and commentary. It begs the question:are such musings actually considered "news" worthy of protection?

Everyone Can Do It

Blogs, short for "Web logs," are Web sites that can be created by anyone with Internet access and a personal computer. Now, however, these sites have grown from personal diaries to influential, highly visited Web sites. And, in the case of Dan Rather, these Blogs are propelling stories into mainstream media.

Now blogs are once again in the media. This time however it is the bloggers who are under attack. Apple Computer, Inc. is suing 25 unnamed individuals, possibly Apple employees, who allegedly leaked specifications about a digital music product code named "Asteroid" via various Blogs: PowerPage, Apple Insider and Think Secret.

According to Apple, the individuals being sued violated nondisclosure agreements, as well as California's Uniform Trade Secrets Act, an important tool for protecting business secrets that don't qualify for traditional forms of intellectual property protection such as patent or copyright.

The bloggers however have argued that they need not divulge the identities of these individuals, as the bloggers were simply reporting the news and should be afforded the same protections as traditional journalists.

Blogs:A Valid Form of Press?

Apple not only questioned the credentials of the on-line reporters and independent blogs, but also said the reporters merely reproduced technical specifications that only could have been provided by someone who breached an Apple confidentiality agreement.

In an attempt to identify the unnamed individuals who leaked the confidential information, Apple had a subpoena issued to request that e-mail records were turned over from the sources of the three on-line reporters in question: Jason O'Grady, a freelance journalist who edits the Mac news site PowerPage; Monish Bhatia, who publishes the Mac News Network and provides hosting services to Apple Insider; and Kasper Jade, who publishes Apple Insider under a pseudonym.

When taken to the courts in March, Santa Clara County Superior Court Judge James Kleinberg ruled in Apple's favor. Judge Kleinberg stated that the three independent on-line reporters may have to divulge confidential sources, ruling that those who publish a company's trade secrets are not entitled the same protections as other reporters.

Judge Kleinberg noted that he did not rule against the reporters because they were bloggers, writing for relatively obscure Internet sites, but because they violated trade secret laws.

Advocates of Apple believe that extending the Freedom of Speech privilege to an easily created blog may turn legitimate investigative reporting into an "anyone can do it" system. But others pose the question: do companies have the right to force the bloggers to identify their sources, or are the bloggers' sources protected by the same First Amendment rights as traditional journalists?

National Newspapers Are Standing Behind Blogs

The three on-line reporters argue that identifying their sources would create a "chilling effect" that could "erode the media's ability to report in the public's interest." And, they have since appealed Kleinberg's ruling with the support of numerous news organizations, including eight of California's largest newspapers and the Associated Press.

In fact, these media outfits have submitted court briefs on behalf of the bloggers asking that any and all on-line publishers be allowed to keep their sources confidential. These news organizations argue that if Kleinberg's ruling is upheld, it would impair the ability of all journalists to reveal important news; news that companies might otherwise not want to be revealed.

"Recent corporate scandals involving WorldCom, Enron and the tobacco industry all undoubtedly involved the reporting of information that the companies involved would have preferred to remain unknown to the public," the 38-page brief stated.

Internet industry groups, which represent search engines and other on-line companies, filed a similar brief, stating that Internet service providers should be able to protect their clients' confidentiality.

Many believe the argument in question is whether or not blogs are a valid form of press. Some proponents of blogs believe extending source protection to a certain group of reporters but not another may create a "licensed" or "established" press. In addition, free speech advocates and attorneys for the reporters insist that all journalists should enjoy the same legal protections as traditional reporters in mainstream newsrooms.

Where Does Journalism Go From Here?

The subpoenas directed against the bloggers question whether on-line writers for blogs should enjoy the same protections provided to better-known sites such as CNN.com or NYTimes.com. In essence, bloggers shouldn't enjoy the same protection that better known sites are provided because they are considered "protected journalists."

According to California law, journalists "connected with or employed by" newspapers, magazines, periodical publications and wire services are shielded from divulging their sources, but it doesn't explicitly mention Internet sites.

But, what of the outcome?

The outcome of the Apple case will have a major effect on the future of, not only bloggers, but for on-line reporters and traditional journalists. Does the traditional reporters' privilege of reporting the news also protect the typical Web "blogger?" If a traditional newspaper wrote about the Apple story, would they have First Amendment protection or would they have to disclose its sources for fear of violating a trade secret? This may be an issue that

only the courts can decide.