Sony Hack: The Firestorm

Following a highly-publicized Sony hack in which a vast number of internal documents were stolen, a legal representative for Sony, David Boies, has been sending several strongly worded letters.

Sony is attempting to silence the coverage of these documents in the news and on Twitter.The recipients include various media outlets, random Twitter users and recently, Twitter itself threatening legal action should they link to, publish or otherwise use the stolen documents. A copy of the last letter was republished by Motherboard. The question of the hour is whether Sony is legally in the right.

The case is complicated and dives deep into the murky waters that are the intersection of the first amendment, copyright law and our society’s distaste for prior restraints. Bear with me through – some technicalities and definitions and I’ll attempt to pull this knot apart.

Prior restraints

A prior restraint, in the context of first amendment law, is a government action that prohibits or regulates speech (or other expression) before it can take place. With few exceptions, prior restraints are considered to be unconstitutional.
Why does this apply in the Sony hack case? Simply put, the fact that a piece of information was obtained illegally is generally not considered enough to make the re-publication of that information illegal. To enact such a law would constitute a prior restraint. This facet is important, so bear it in mind.

Legal precedents

There are two legal cases that are being cited in relation to this case, Bartnicki v. Vopper and Pearson v. Dodd.

In the former case, radio commentator Vopper received an illegally recorded tape of a conversation between union leaders who allegedly were discussing a physical attack on managers. While Vopper wasn’t involved in the illegal interception, he realized that it hadn’t been recorded via legal means. The Supreme Court held that, provided the broadcaster wasn’t involved in the illegal interception and that the communication was on a matter of public concern, the broadcast of this information is protected under the first amendment.

The latter case is similar. Ex-employees of Sen. Thomas Dodd conspired to take documents from the senator’s office without permission, photocopy them and send them to investigative reporters Drew Pearson and Jack Anderson, who published articles based on them. Dodd sued, alleging that the articles constituted an invasion of privacy and a conversion – the usage of stolen property. This argument was rejected, again. It wasn’t an invasion of privacy because the first amendment protects the publication of information of public interest, even if it is illegally obtained, and it wasn’t conversion because such information is not considered property.

Computer Fraud & Abuse Act

Interestingly enough, Sony’s letter to Twitter in which the former company threatened to hold the latter financially responsible for any losses it sustains because of Twitter users linking to the stolen documents, stated that “The possession, use, and publishing of the Stolen Information implicates numerous federal and California state laws,” and goes on to list, among others, the Computer Fraud & Abuse Act.

Unfortunately for Sony, nothing in the Computer Fraud & Abuse Act is implicated by the publishing, possession or use of that information.

Make no mistake, the Sony hack absolutely violates the Act, and if caught, the hackers would almost certainly face jail time. However, as previously stated, simply because information was illegally obtained doesn’t mean that it is illegal to republish it.

Copyright Act

Sony’s letter also invokes the copyright act – depending upon the information that is published, the copyright act may or may not apply. It is possible, for example, that the publication of complete emails obtained by the hackers could be considered a violation of copyright – employers generally own the copyright to their employees’ work emails. However, emails that are predominantly factual, as opposed to creative, are probably not protected.

Worth noting is that the leak also contained the script for “Spectre,” an upcoming James Bond film. The publication of this script would definitely be considered a violation of copyright law.

In the end, while there are some legal avenues Sony could explore, going after the hundreds of Twitter users who are linking to the leaked emails would likely be a fool’s errand. Going after the well-equipped legal departments of the news organizations it threatened would likely prove just as fruitless. In my opinion, Sony’s legal team almost certainly knows this. The simplest interpretation may be the soundest: This is a bluff.

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Anthony R. Caruso is a business transactional attorney in New York and New Jersey with experience in structuring, negotiation and completion of legal deals involving business, entrepreneurs, athletes and performers.

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