updated 3/7/2005 9:04:06 AM ET 2005-03-07T14:04:06

Free speech advocates asked a state judge Friday to grant the same protections mainstream journalists enjoy to three independent Web publishers embroiled in a lawsuit that Apple Computer Inc. filed over company trade secrets they obtained.

Superior Court Judge James Kleinberg had tentatively ruled Thursday that that the three must reveal their confidential sources, who are presumably employees of Apple.

During a hearing Friday, Kleinberg appeared to take a dim view of the idea that the media have the right to publish information that could only have been provided by someone breaking the law.

"Theft and use of trade secrets is a crime — a felony," said Kleinberg, who is expected to issue a final ruling next week.  "Isn't there a balance ... between trade secrets and protections of journalists?"

Apple last year sued several unnamed individuals, called "Does," who leaked specifications about an upcoming music product, code-named "Asteroid," to independent Web site operators Monish Bhatia, Kasper Jade and Jason O'Grady.  The three publish reports on Apple Insider and PowerPage.

If they refuse to tell Apple attorneys the names of their sources, they could be subject to criminal violations of the U.S. Trade Secrets Act, and might not be protected by laws that ordinarily shield journalists.

The online reporters have refused to cooperate, and attorneys representing them argued that forcing them to divulge prized sources would create a "chilling effect" that weakens the media's ability to report in the public's interest.

Next steps
Electronic Frontier Foundation attorney Kurt Opsahl said Apple investigators must first question suspect employees under oath and even search e-mail files to determine the sources.

"Apple hasn't taken depositions, hasn't looked at employees' Internet service providers and has made no effort to contact those sources," Opsahl said.  "Instead of using discovery of journalists as a last resort, they're using discovery of journalists as a first resort."

Apple attorneys said the company questioned nearly 30 employees — not under oath, but under threats that they would lose their jobs if they lied — and conducted "computer forensics" to try to determine who leaked the product release and other details.

Apple is not unconcerned about the First Amendment implications, according to the company's attorney, George Riley, who questioned whether the Web site operators are truly journalists or merely people who "disseminated" information.

Riley said trade secrets were published verbatim and without analysis, providing little journalistic value but giving competitors information that could that could damage the company's finances.  "We're vitally concerned about the precedent this would set," Riley said in court Friday.  "We didn't bring this case lightly."

EFF attorneys said the online journalists shouldn't be treated differently than those in the mainstream or trade media.  PowerPage is read by roughly 300,000 people per month, easily eclipsing some of the industry's influential trade publications, EFF attorneys said.

The case in San Jose isn't the first time Apple has wrangled with online journalists.  On Jan. 4, Apple sued a 19-year-old publisher of another Web site that revealed trade secrets about the $499 Mac mini computer.

Defendants in the case include Harvard University student Nicholas Ciarelli, a Mac enthusiast who publishes the Web site ThinkSecret, and unnamed sources who tipped him off two weeks before Apple officially introduced the mini on Jan. 11.

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