We haven’t spent a lot of time talking about the massive hack of Sony records, corporate correspondence and media content aside from the obvious liberal hypocrisy on display. The reasons should be obvious. There is plenty of salacious material being passed around, but there really isn’t that much of a political or policy hook to the story. But that changed this weekend when Sony sent their lawyers on to the battlefield and switched the story from one of stolen copies of what are probably overrated movies to a First Amendment question.
[Sony’s] 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?
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.”
It’s an interesting question and one which draws attention yet again to the complicated differences between intellectual property and material goods. If someone steals a bag of diamonds from you, they don’t become public property just because they have left your control, and it does not then become legal for someone else to wear them to a cocktail party. But what about photographs? Once they’ve hit Reddit and propagated across the planet, the data is forever gone beyond the reach and control of the original owner. Perhaps even more tricky is the question of private correspondence, such as all of those embarrassing emails between Sony executives. They were never intended as a public “product” to be distributed, and once the content is out there, what additional harm does Sony suffer by having it show up again and again?
The media is clearly covered in terms of reporting that the hack took place, and probably a general description of the content which was stolen. But does the First Amendment include the right to include the specific, damning text of the correspondence? Should they be able to keep showing nude pictures of Jennifer Lawrence and Kaley Cuoco (with the naughty bits blurred out) as part of their duty to cover the story for the public? At what point, if ever, do they cross a line from reporting on the story of a theft into the realm of trafficking in stolen goods?
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,” Chief Justice (sic) John Paul Stevens wrote for the majority.
Volokh makes a lot of sense there. The subjects of the media content and the authors of the email communications certainly don’t enjoy having the material replayed over and over again on cable news, but it wasn’t the news organization who stole the material. The fact that it was stolen and, to a certain extent, the volatile nature of the communications qualify it as news, tawdry though it might be. It doesn’t sound as if Sony will have a lot of luck in getting the media to stop talking about the material as it continues to leak out. But that won’t stop them from trying, apparently.