The Free Flow of (Digital) Information: The Apple Computer Case

Abstract

Justice Potter Stewart's resonant opinion in Branzburg v. Hayes asserts that "the reporter's constitutional relationship with his source stems from the broad societal interest in a full and free flow of information to the public." 408 U.S. 665, 725 (1972). Although stewart was writing in dissent, similarly strong statements recognizing the importance of available information to a free people can be found in the majority opin ions of other Supreme Court cases, as well as in the words of figures as significant as James Madison. Id., at 723. In support of that value, courts and legislatures have cre ated and applied legal rules to protect the transmission of information to the public. Technology and social practices change the way that information travels to the public, and such changes require that the rules be revisited, revised, and possibly extended. In O'Grady v. Superior Court of Santa Clara County (Apple Computer inc.), 139 Cal. App. 4th 1423 (2006), a California state appeals court extended conditional First Amendment protection to the confidentiality claims of a Web publisher accused of revealing trade secrets of the Apple Computer company. The decision arose from an interlocutory appeal of a denied discovery motion filed on behalf of Jason O'Grady, publisher of O'Grady's PowerPage, a Web page devoted to Macintosh products and services. In November 2004, PowerPage published several articles detailing rumored features of a new Apple product called Q97, or "Asteroid," an audio interface for Apple's digital music software GarageBand. The articles appearing on PowerPage and Apple Insider, another site devoted to Apple news, described the features and includ ed artists' renditions of the proposed product as well as some background on the prod uct's development and marketing strategy. Shortly thereafter, attorneys for Apple requested that O'Grady remove the stories and references to Asteroid, which they described as proprietary trade secrets, and disclose the sources of that information. Apple submitted an internal electronic presentation file marked "Confidential," an alleged primary source of the stories. On December 13, 2004, Apple filed a complaint against a number of "Does," unidentified defendants who had allegedly breached confidentiality agreements to disseminate the information appearing in the stories. Apple caused the host of PowerPage's e-mail account, Nfox.com, to be served with subpoenas in February 2005 seeking the identity of the unknown defendants. In response, O'Grady and two other petitioners affiliated with the online publications sought a protective order to prevent enforcement of the subpoenas and further discovery requests, citing several state and federal grounds protecting the digital communications from disclosure. In a sixty-nine-page decision for the Sixth Appellate District of California, Judge P. J. Rushing directed the lower court to grant the requested order. The judge sided with the petitioners on questions of federal and state law. After resolving sev