The company threatened legal action against news organizations that failed to heed its request, a strategy some legal scholars say would have a rough time passing muster under the First Amendment, which protects freedom of the press. Though no one has accused any news organization of participating in the theft, the letter appears to be a gambit to stop news outlets from reporting the documents.
Sony’s action came just as the hackers, who call themselves the “Guardians of Peace” reportedly threatened another dump of stolen data. The hackers have demanded the company withdraw an upcoming comedy based on a fictional plot to assassinate North Korean leader Kim Jong Un.
Written by renowned litigator David Boies on Sony’s behalf, the three-page letter, which was published by Re/Code, told news organizations to refrain from downloading the documents. It asked for “cooperation in destroying the stolen information.” Outlets that reported receiving the letter Sunday included the New York Times, Bloomberg, the Wall Street Journal, Variety, Gawker, the Los Angeles Times and Re/code. Scores of other news organizations may have also received Sony’s letter.
It said the studio “does not consent to your possession, review, copying, dissemination, publication, uploading, downloading, or making any use of the stolen information.”
“If you do not comply with this request, and the stolen information is used or disseminated by you in any manner,” Boies wrote, “Sony Pictures Entertainment will have no choice but to hold you responsible for any damage or loss arising from such use or dissemination by you.” It said Sony was at risk of “loss of value of intellectual property and trade secrets” as a result of the media’s actions. (Among the stolen items reportedly is the screenplay for an upcoming James Bond movie, “Spectre.”)
The letter marked the latest turn in a hacking drama that embarrassed Sony as well as a number of big Hollywood players. The contents of the leaked data, which some analysts suspect may be linked to a North Korean regime furious over the release of Sony’s movie “The Interview,” included information on Sony’s salaries, business dealings, private health records and executive correspondence. Those letters revealed what’s been described in media reports as a racially insensitive conversation involving President Obama and disparaging remarks about some of Hollywood’s biggest actors, including Angelina Jolie and Leonardo DiCaprio.
Among those mentioned in the e-mails was Aaron Sorkin, who blasted news organizations this morning in a commentary in the New York Times. “I’m not a disinterested third party,” he wrote. “Much of the squabbling” featured in stolen emails “was about a movie that’s about to begin shooting, ‘Steve Jobs,’ for which I wrote the screenplay.”
But, “as a screenwriter in Hollywood who’s only two generations removed from probably being blacklisted, I’m not crazy about Americans calling other Americans un-American, so let’s just say that every news outlet that did the bidding of the Guardians of the Peace is morally treasonous and spectacularly dishonorable.”
Sony’s lawyer, Boies, is one of the nation’s most famous litigators. He represented the U.S. government in its antitrust suit against Microsoft, was the lead counsel for Vice President Al Gore in the 2000 Florida election case that reached the Supreme Court (Bush v. Gore) and, most recently, fought a California proposition banning same-sex marriage. He did not respond late last night to a request for comment by The Post.
Sony’s ability to follow through with legal action is uncertain at best, legal scholars said last night. “The short answer is that publishing such leaked material, even if it was illegally extracted by hackers, is likely to be legal,” said University of California at Los Angeles law professor Eugene Volokh in an e-mail last night. He cited a 2001 Supreme Court case, Bartnicki v. Vopper, which he said “held that a publisher had a First Amendment right to publish illegally intercepted phone calls (when it wasn’t involved in the initial illegal interception.)” Volokh stewards the blog, The Volokh Conspiracy, which appears in the Washington Post. Here’s his post on this subject.
George Freeman, a former attorney for the New York Times who now runs the Media Law Resource Center, said Sony’s demands struck him as “a stretch.” He said newspapers and other publications have reported leaked corporate and government documents “scores of times,” and this instance appears similar to those.
“I can’t think of any instance where the innocent beneficiary of leaks would get restrained from publishing,” Freeman said, referencing the news outlets’ decisions to publish the Pentagon Papers. “If anything, there would be less a problem for media in printing corporate documents like these than printing classified documents, which the government has claimed can violate the Espionage Act.”
Investigators have identified seven proxy servers around the world the hackers used to route their attack, one of which was based at a hotel in Thailand. The others were in Poland, Italy, Cyprus, Bolivia, Singapore and the United States, said a person familiar with the investigation who spoke with The Post last week on the condition of anonymity because the probe remained incomplete.
The FBI, which has been investigating the incident, has not yet publicly named a culprit.
While most of the publicity from the leaks focused on embarrassing e-mail exchanges between executives and snarky comments about stars such as Jolie, Boies’s letter focused on a different class of information, including communications between lawyer and client, private financial data, intellectual property and “business secrets.”
It noted that “the perpetrators of the theft have threatened” Sony “for the stated purpose of materially harming” the company unless it withdraws the motion picture from distribution.
Related story: Why Sony probably can’t stop the media.