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A US appeals court has been hearing arguments in a case that tests the right of a blogger to protect his sources. Apple Computer wants to know who leaked details of a product called 'Asteroid' and expects bloggers to reveal the names.

ADetails of Asteroid, a music device, were leaked two years ago by PowerPage.org and other blogs. The blog owners say they are journalists and should be protected from revealing their confidential sources.

ZDNet reports that, on Thursday, Presiding Justice Conrad Rushing questioned whether the leaked information even amounted to a trade secret. "You don't really claim this is a new technology?," he asked. "This is plugging a guitar into a computer."

But Apple's lawyer characterised the leak as "a very serious theft".

The Electronic Frontier Foundation is representing the online journalists. It contends that Apple has no right to force the bloggers to reveal their sources.

Apple has sued several unnamed individuals, called "Does" (as in "John Doe" and "Jane Doe"), for allegedly leaking the information. According to the EFF, as part of the lawsuit, Apple has subpoenaed Nfox, the ISP for PowerPage publisher Jason O'Grady, demanding that the ISP turn over the communications and unpublished materials O'Grady obtained while he was gathering information for his articles. Apple was also granted permission to issue subpoenas directly to PowerPage and AppleInsider for similar information.

A trial court ruled last year that if a journalist publishes information that a business claims to be a trade secret, this act destroys constitutional protection for the journalist's confidential sources and unpublished materials.

EFF Staff Attorney Kurt Opsahl told the appeals court on Thursday that the subpoena to Nfox violated the federal Stored Communications Act, which prohibits direct subpoenas of email communications held by email service providers. Opsahl also argued that O'Grady and other journalists are entitled to protect their confidential source information under both the California constitution and the US constitution.

A ruling is expected within 90 days.

Copyright © 2006, OUT-LAW.com

OUT-LAW.COM is part of international law firm Pinsent Masons.

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