07/03/2010 05:12 am ET Updated May 25, 2011

Apple's History of Attacking Journalists

When you look in the mirror, do you see a journalist?

If not, you may want to look again. Have you ever posted a comment on a blog post? Do you have a blog of your own? Do you comment or critique things on Amazon or any of the other e-commerce sites that allow commenting?

I'm asking because the criminal complaint lodged by Apple after the alleged theft of the iPhone prototype has raised some important questions about the line between the first amendment and the emerging tools that facilitate and even encourage creative expression.

Shelly Palmer wrote a pretty provocative blog post in which he asked: "What it means to be a journalist in the 21st century, what it means to be a citizen of the United States in the 21st century and, maybe as importantly, what it means to be a digital citizen in the Information Age?"

Palmer's post digs at the heart of the matter, where is the line between protected speech, journalism, and technology:

If you added up all of the television and radio stations plus the cable operators, there were about 25,000 broadcast entities in the United States. Today, no matter how you look at it, there are over 180 million. From a technical perspective, the millions of Internet-connected computer users and the millions more who have network-connected smart phones are real broadcasters. Everyone with a connected computer, a smart phone or an app phone can make their content available to a worldwide audience almost instantly. But, does that make them journalists?

There's no doubt that there's a shift from content consumption to content creation. Historically content creators were media companies who had something to lose if they published material that was defamatory or damaging. They could be sued for libel, and those cases, while hard to win, could be costly. But the emergence of micro-journalists working out of the their apartment or their off their laptop may be far harder to find, or if found they could be what lawyers call "judgement proof." That's code for, they don't have any assets worth trying to go after.

There are two sides to this coin.

On the one hand, having more voices is clearly a good thing. And just the fact that the police in the Apple case found themselves faced with some serious questions about why they used a warrant and a battering ram rather than a subpoena and a process server suggests that Jason Chen's apartment may well be found to be protected under California's Journalists Shield law. But, as Shelly points out, there's no clear line as to where a citizen ends and a journalist begins. And the law provides a different level of protection for journalists than it does for average folks.

Section 1524 (g) of the California penal code prohibits issuing search warrants to obtain any of that information. That's the law Gawker Media's COO Gaby Darbyshire pointed to in Chen's defense. Sandra Baron at the Media Law Resource Center told Tech World News:

The standards for obtaining source and other materials from journalists is a stiff one in California, and by engaging in this search and seizure, law enforcement has undermined the very protections that the law seeks to provide journalists.

And, in fact, these law enforcers were part of REACT, a law enforcement wing that was supposed to be chasing after pedophiles and terrorists and hackers.

Rapid Enforcement Allied Computer Team (REACT) is designed to fight piracy. San Jose Business Journal reports:

Since its inception 11 years ago, the task force has made more than 1,000 arrests and recovered more than $1.4 billion in stolen, counterfeited or pirated goods. One recent case, headed by REACT investigator Marshall Norton, led to the arrests and convictions of three people who used credit card skimmers to steal people's numbers and replicate their cards.

But it hardly seems like Gizmodo was going to ship the prototype phone to a criminal enterprise. In fact Gizmodo had already agreed to work with Apple, making the police activity even more hard to fathom, other than to send a harsh warning to other tech journalists who might try and scoop Apple. In 2007, Apple sued the blog Think Secret, a popular Apple rumor blog. Apple brought a civil lawsuit after Think Secret published details of an unreleased music product codenamed "Asteroid" in January 2005. Specifically, the company went after Think Secret for "posting Apple trade secrets and encouraging and inducing persons to provide product information in breach of agreements," Wired reported at the time. "Think Secret, which launched in 1999, tried to have the lawsuit dismissed, calling it "an affront to the First Amendment, and an attempt to use Apple's economic power to intimidate small journalists..." The case, and a similar lawsuit against the blog, start to look like a pattern of using hard charging legal tactics to "chill" coverage of unreleased Apple products.

You can read O'Grady's first hand account of the Apple suit here.

These cases aren't identical, and I don't claim to be a legal expert. But one thing is clear: Apple has historically and consistently taken a litigious hard line on journalists who cover the company. The result is that public, dramatic, and potentially costly legal maneuvers do more than stifle corporate espionage and theft; they send a scare into anyone who's going to report anything about the company that isn't in the form of a company authorized press release.

At a time when Apple is quickly shifting from being a software and computer company to a publisher, with the right to accept and reject content that will be played on its platform, they're also reminding content makers and publishers that their view of the world is "My Way Or the Highway."

As Apple bans "ridicule of public officials" and apps that offer tourism advice to the Gay community, it should give readers and content makers alike pause that Apple is both a censor and publishing platform. They may not have the corporate culture to take on such a pivotal role.