After being at Mashup University and Mashup Camp last week, I'm just now catching up on all my news from last week and noticed that I missed the blockbuster story that Apple has abandoned its efforts to use subpoenas in hopes of unmasking whoever it was that leaked trade secrets to two supposedly "uncredentialed journalists" (one of which is fellow ZDNet blogger Jason O'Grady). Wrote News.com's Declan McCullagh of the development:
The company's deadline to continue a legal battle to find out who leaked the information to independent online journalists has passed, and Apple acknowledged in a brief court filing this week that it will not take its fight to the California Supreme Court.
On May 26, a state appeals court rejected Apple's attempt to send a subpoena to obtain records and archived e-mail from Jason O'Grady, creator of PowerPage.org, and Kasper Jade, the pseudonymous publisher and editor-in-chief of AppleInsider.
The three-judge panel rejected Apple's arguments that the independent reporters were not true journalists. "We decline the implicit invitation to embroil ourselves in questions of what constitutes 'legitimate journalism,'" the court said, ruling that California's journalist shield law would protect the Web reporters.
Early last year, Apple thrust itself into the journalists vs. bloggers debate when it began filing suits that to many, called the official definition of a journalist into question. The suits raised questions as to whether certain classes of writers existed that were more deserving of First Ammendment protections than others. But now, with Apple finally abandoning these lawsuits, it appears as though a precedent -- the right precedent -- is being set. In a piece headlined Apple versus Websites: Apple folds hands (one that so far has suprisingly drawn no comments), former San Jose Mercury News journalist Dan Gillmor who is now one of the leading champions of citizen journalism (and who filed declarations in the cases) immediately picked up on the Apple news saying:
This is extremely good news for the citizen journalists of the world, or at least California.
It's too bad, in a way, that Apple didn't take it to the state Supreme Court or even higher. (Steve Jobs publicly vowed he would do just that; like some of his other assertions over the years, this turned out to be, uh, inoperative.) A precedent from the highest court is always better than one from a lower court.
But this is still a valuable precedent, and one we should all celebrate. The appeals panel understood that protecting journalism, not journalists, is the point. We should all remember that.
Indeed we should. And hopefully, this precedent will resonate with other states as well. This is aside from the fact that I have no idea what a "credentialed journalist" is. At least until I started blogging a couple of years ago, I though of myself as a journalist having worked as such for media companies since 1991. But I was never issued any sort of official credentials that said I was a journalist nor should such a thing exist.
Meanwhile, Apple isn't completely out of legal options. According to the original news story:
One source close to Apple did say that the company is not precluded from continuing its lawsuit before Santa Clara County Superior Court Judge James Kleinberg.
Apple could, for instance, attempt a more aggressive internal investigation. Court documents show the company's investigators interviewed 29 employees who had access to a key confidential document--but Apple did not examine them under oath or examine their computers.
That's one reason, the appeals court said, to grant the online journalists the protective order they requested. "Apple has failed to establish that it adequately pursued other possible means to identify the source of the information in question," the judges said.
That sounds right to me. Before a company can go around setting legal precedents that identify what is and what isn't a journalist, it needs to look at its own house first.