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Defining Journalists in the Age of the Blog

According to today's NY Times, in an age when private citizens are publishing blogs that have become a "critical source of news," the courts are being asked by Apple Computer to decide to whether or not bloggers should enjoy the same protections as mainstream journalists. In the past, the courts have extended latittude to journalists "in protecting the identities of confidential sources."
New York Times

Free Speech, or Secrets From Apple?
By TOM ZELLER Jr.

gainst the backdrop of the Macworld Exposition in San Francisco this week, a series of legal actions filed by Apple Computer over the last month highlights the difficulties of defining who is a journalist in the age of the Web log.

As part of a lawsuit filed by Apple in Santa Clara County Superior Court on Dec. 13, the company obtained a court order allowing it to issue subpoenas to AppleInsider.com, PowerPage.org and Thinksecret.com. The three Web sites published or linked to information on what they said was a future Apple audio device that was code-named "Asteroid." The subpoenas are aimed at getting the operators of those sites to disclose the sources of the information that was reportedly leaked.

An attorney representing AppleInsider and PowerPage asserted that bloggers ought to be extended the same protections as mainstream journalists, who have traditionally been given some latitude by the courts in protecting the identities of confidential sources.

"Bloggers are becoming a more and more critical source of news," said Kurt Opsahl, the lawyer representing the two sites and a staff attorney with the Electronic Frontier Foundation, a digital rights group based in California. "A lot of confidential tips first start out on the blogs before being picked up in the mainstream media."

Apple did not return phone calls seeking comment on its legal moves.

California provides its own protections for journalists in its state Constitution, in addition to the qualified privileges laid out by the First Amendment, Mr. Opsahl said. But Apple's actions come at a time when even traditional protections for mainstream journalists are being tested in the courts.

Two journalists, Judith Miller of The New York Times and Matthew Cooper of Time magazine, face contempt charges for refusing to reveal their sources in learning the identification of a Central Intelligence Agency operative in 2003. Those cases have brought into relief the vagaries of extending protections to journalists who gather sensitive information at a time when the definition of "journalist" is being blurred by Web logs and other Internet operations.

David B. Sentelle, one of the federal judges hearing the appeal of those contempt charges last month, suggested that in the Internet age, when anyone can set up a blog, there are no clear lines for defining who is entitled to journalistic protections.

Such questions are also likely to be raised in a separate case filed by Apple earlier this month against Thinksecret.com. In that suit, Apple claims that the operator of the site, which published what it said were specifications for a low-cost Macintosh, illegally solicits trade secrets from Apple employees. Many Apple watchers expect the new Macintosh to be unveiled at the Macworld conference this week.

"Apple does not seek to discourage communication protected by the free-speech guarantees of the United States and California Constitutions," Apple said in the suit. "These constitutionally protected freedoms, however, do not extend to defendants' unlawful practice of misappropriating and disseminating trade secrets acquired through the deliberate violation of known duties of confidentiality."

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