The Pentagon Papers. Climategate. Wikileaks. The celebrity nude photo scandal. Confidential information stolen and leaked.
News organizations have long used material, stolen by others, when they deem it newsworthy, whether it’s from the files of the government or private companies and individuals. Lots of people have tried to stop them. Rarely have they succeeded.
The latest example is Sony Pictures Entertainment. Its lawyer sent a letter to media organizations on Sunday warning them not to use a trove of corporate data dumped by hackers who infiltrated the company’s corporate servers last month. And it wasn’t just any lawyer. The sender of the “Dear General Counsel” letter was celebrated litigator David Boies.
Can Sony, even with David Boies, force the media to stop reporting the details of the hack or make news organizations destroy the documents, as Boies is demanding?
According to legal experts, probably not. Unless the publications themselves stole the documents, the courts have blanketed them with broad First Amendment protections that are hard to overcome. So if Sony doesn’t have much of a legal leg to stand on, what’s the point of sending threatening letters to the New York Times, the Wall Street Journal, the Los Angeles Times, Gawker and other media outlets?
Perhaps to scare them. Nobody relishes the prospect of costly legal battle. Media organizations might postpone publication of stories about the hack while they consult their lawyers, or exercise more caution and discretion in what they publish, weighing the real news value as opposed to the click quotient. The letter also plays to some news organizations’ ethical sensibilities. Some already feel squeamish about using stolen material, though it hasn’t stopped them.
In the past week, the media have published hundreds of stories about the personal e-mails and corporate documents, reporting on Sony executive salaries, business dealings and e-mail exchanges in which executives took shots at President Obama and Angelina Jolie, among others. It’s one of the largest document dumps ever to hit a major corporation.
The letter sent by Boies said the stolen information includes material protected by attorney-client privilege, trade secrets and private information otherwise legally protected.
Sony “does not consent to your possession, review, copying, dissemination, publication, uploading, downloading, or making any use of the Stolen Information,” the letter said. It warned Sony would have “no choice but to hold you responsible from any damage or loss resulting from such use or dissemination by you.”
University of California at Los Angeles law professor Eugene Volokh explained in a blog post for The Washington Post that as long as media outlets don’t participate in stealing information, they are generally protected by the First Amendment if they use it in their reporting.
That what the Supreme Court ruled in Bartnicki v. Vopper, a 2001 case about a radio host who played a tape of an illegally recorded conversation left in his mailbox. On the tape, union leaders in the middle of a contract dispute with the school board discussed taking violent action if their demands weren’t met. The union leaders sued, saying the radio host violated federal and state wiretapping laws that prohibit dissemination of stolen information.
The court sided with the media. The case turned on two things: the fact the radio host didn’t intercept the conversation himself and claimed not to know it was illegally recorded, and the fact that conversation was newsworthy. A “stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern,” Justice John Paul Stevens wrote for the majority.
That case doesn’t exactly fit the facts of the Sony hack. For one thing, media outlets know the information was stolen.
But in another case from 1969, reporters did know that photocopied documents given to them by former employees of Sen. Thomas Dodd (D-Conn.) were taken without permission. Dodd sued investigative reporters Jack Anderson and Drew Pearson. The D.C. Circuit Court in Pearson v. Dodd said giving photocopies to reporters didn’t deprive Dodd of a property right to the documents, and the reporters didn’t intrude on Dodd’s privacy by publishing information of public concern that was stolen by someone else.
Sony might argue the stolen information isn’t newsworthy for First Amendment purposes — for example, an e-mail from movie producer Scott Rudin calling Jolie a “minimally talented spoiled brat.” The definition of what’s newsworthy isn’t clear, but is generally forgiving to publishers, Volokh told The Post in a phone interview. Even seemingly petty details could be deemed valuable to public discussion. “Personal opinions about Angelina Jolie might be newsworthy because they reflect on the behavior of two really important business actors,” Volokh said.
But there are limits to what newspapers can do in the name of press freedom. Volokh said there are two types of information that the media could get in trouble for publishing.
The first is personal information about a particular individual — details about an extramarital affair or the medical records of a low-level employee whose health, unlike that of a U.S. president, isn’t of public concern. Bloomberg published an article last week that reveals information about Sony employees’ private health records without naming names.
But even in such cases, Sony couldn’t sue, Volokh said. Only the person whose private information was made public could.
The media could also get in trouble for publishing copyrighted material. Re/Code reported the stolen data includes five unreleased Sony films. Even e-mails are protected by copyright. Paraphrasing or excerpting an e-mail isn’t likely to infringe on copyright, but publication of the full text might, Volokh said.
On the other hand, a strong letter from a lawyer tends to get the attention of editors and their corporate legal departments. Stories can get slowed down or even vetoed as not worth the risk from a news standpoint. Right now, news organizations appear to be pretty freewheeling with the Sony information, though some journalists already have reservations about publishing stolen material unless it exposes some significant wrongdoing.
“The more Sony Pictures data keeps leaking, the more my moral compass spins like a weather vane in a hurricane,” Variety co-editor-in-chief Andrew Wallenstein wrote in an op-ed titled “Why Publishing Stolen Sony Data Is Problematic but Necessary.” “It’s getting harder for me to report on the contents of Sony’s leak without wondering whether I’m somehow complicit with these nefarious hackers by relaying the details of seemingly every pilfered terabyte.”
But in today’s social-media environment, the simple fact someone else leaked private material becomes news, whether or not a publication chooses to reproduce it. That’s what happened with the nude photo hack of Hollywood celebrities, during which many outlets publicized the pictures without publishing them even as they condemned them as a grotesque invasion of privacy.
“These [Sony] documents are neither the JLaw nude photos nor are they Snowden’s cache of national security documents,” Anne Helen Petersen wrote for Buzzfeed. “Yet when it comes to future handling of such information, the gray area in which they reside — between public and private, between prurient and illuminating — might not be the exception, but the new normal.”
She sees a function for journalists now. “The new role of journalists, for better or for worse, isn’t as gatekeepers, but interpreters: If they don’t parse it, others without the experience, credentials, or mindfulness toward protecting personal information certainly will.”
Correction: An earlier version of this article incorrectly referred to Justice John Paul Stevens as chief justice.