ISPs and Publishers Urge Cal. Court to Protect Online Privacy

The company is suing several unnamed individuals alleged to have leaked information on the project. Apple also is subpoenaing Nfox, ISP for PowerPage.com publisher Jason O'Grady, demanding it turn over O'Grady’s communications and unpublished materials. Apple also received permission to issue subpoenas directly to EFF clients for similar information (WID March 7 p4).

The U.S. Internet Industry Assn. and NetCoalition argue in a friend-of-the-court brief that the journalist’s e-mail messages are protected under the federal Stored Communications Act (SCA). They also said if the trial court decision isn’t reversed, it will unduly burden service providers and severely compromise e-mail users’ privacy. The Internet industry’s position reflects a widely accepted rule that e-mail service providers are barred by federal law from disclosing users’ private e- mail in civil disputes, said EFF Staff Attorney Kevin Bankston. “These protections are critical to ISPs and their ability to provide safe, reliable and secure communications channels to their subscribers,” the brief states: “Congress has repeatedly affirmed that ISPs should not be placed in the position of ‘big brother’ monitoring or scouring through private electronic communications for the benefit of civil litigants.” Nfox CEO Karl Kraft told Washington Internet Daily no records have been given to Apple and lawyers for the company and EFF have agreed that until the foundation exhausts its options for appeal, O'Grady’s files will stay put.

If an ISP violates the SCA under a lower court’s order, there’s no reason the ISP can’t be sued by the individual whose e-mails are handed over, USIIA Pres. Dave McClure said. Many smaller ISP’s don’t know the law’s scope; some don’t even realize it exists, he said. Besides violating a federal mandate, this decision could set a dangerous precedent for civil cases, McClure told us: “To allow a civil litigant access to Internet records -- that’s contrary to the position the industry has taken repeatedly.” In the long term, this could let anyone read another individual’s e-mail simply by filing a civil suit, he said.

The 2nd brief, filed by a handful of publishers, says the trial court incorrectly allowed trade secret law to trump First Amendment rights and that Apple failed to exhaust all other alternative sources for the information it wants before asking for journalists’ contacts. Allowing journalists’ confidential sources to be disclosed by subpoenaing 3rd parties, especially with no showing that the information isn’t adequately available from other sources, would “substantially impair journalists’ ability to gather and report the news by deterring future sources from coming forward and turning journalists into - or at least creating a perception that they are - unwilling investigators for the government and other litigants,” the group states.

EFF’s Kurt Opsahl said the court’s seeming disregard for the First Amendment “would broadly chill reporting by all journalists, regardless of medium.” The publishers’ brief was prepared by the Reporters Committee for Freedom of the Press. Signers include the Associated Press, the Cal. First Amendment Coalition, the Cal. Newspaper Publishers Assn., Copley Press, Freedom Communications, Hearst Corp., L.A. Times, McClatchy Co., San Jose Mercury News, Society of Professional Journalists and the Student Press Law Center.