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 websites that can be created by anyone with internet access. Now, however, some of these sites have grown from personal diaries to influential, highly visited websites. And, in the case of Dan Rather, these blogs are propelling stories into mainstream media.

This time, however, it is the bloggers who are under attack. Apple Computer Inc. sued 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, 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 online 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 email records were turned over from the sources of the three online 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, Santa Clara County Superior Court Judge James Kleinberg ruled in Apple's favor. Judge Kleinberg stated that the three independent online 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 stand behind blogs

The three online reporters argued that identifying their sources would create a "chilling effect" that could "erode the media's ability to report in the public's interest."

Multiple media outlets submitted court briefs on behalf of the bloggers asking that any and all online publishers be allowed to keep their sources confidential. These news organizations argued that if Kleinberg's ruling was 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 online companies, filed a similar brief, stating that Internet service providers should be able to protect their clients' confidentiality.

Eventually the online reporters won on appeal of Kleinberg's ruling with the support of numerous news organizations, including eight of California's largest newspapers and the Associated Press.