Apple and bloggers
Back in December 2004, Apple sued several John Does for allegedly releasing confidential information about a new Apple product. Under the auspices of that lawsuit, Apple had requested subpoenas for information from three web sites (ThinkSecret, AppleInsider, and PowerPage), asking for information about the identity of the source of the leak. According to EFF (counsel for two of the three sites), Apple has asked for a subpoena to be issued to PowerPage's ISP, Nfox. Last Friday (three days ago), the judge in the case preliminarily ruled that these subpoenas should not be quashed.
EFF is arguing that a blogger is entitled to a reporter's privilege (under the First Amendment and the California shield law) not to reveal his sources. So far, the judge isn't convinced – or is of the view that even if the reporter's privilege applies, Apple's need for the information outweighs the reporter's need to protect his sources.
It seems to me the outcome (if not the reasoning) of the judge's preliminary ruling is right. Bloggers are certainly journalists. There is no principled distinction between one and the other. (Gillmor on this.) But as long as we're being principled, breaches of trade secret confidentiality are not the stuff of democratic transparency. It's important to protect sources who are leaking government information — that's democracy at work. It's not as important to protect sources who are allegedly breaking promises to keep information confidential.
In my view, the reporter's shield (like anti-SLAPP motions in California) should be reserved for information/sources that actually have something to do with the democratic process. Let's allow judges to carry out this weighing of the importance of the reporter's privilege. An absolute rule (”never force reporters to divulge sources”) will weaken that privilege when we need it the most — when reporters are reporting on government corruption.