Invasion of the Data Snatchers

Should the Leaks from Sony Pictures Be Republished?

This month, Sony Pictures Entertainment became the subject of its own blockbuster hit: The Invasion of the Data Snatchers: A True Story. A massive cyber attack, by an unknown group using the moniker Guardians of Peace (did they register with Google?), stole thousands of internal Sony documents and emails, and then dumped them on the Internet.

Ben Bycel

The documents ranged from employees’ personal information, such as social security numbers, bank account details, salaries, and medical claims, to inappropriate and racially charged emails between Sony’s cochair Amy Pascal and the powerful movie producer Scott Rudin.

There is no question that hacking into the studio’s data system is a serious crime. The Guardians’ criminal activity also included threats, some of them violent, if the studio released an upcoming comedy feature that asks, what if the CIA urged some movie people to eliminate North Korea’s baby-faced dictator?

But what about the news outlets, from the New York Times to Hollywood bloggers, that republished parts of the stolen Sony data? Are they also lawbreakers?

No, not if they didn’t actually steal the information. Should they be subject to civil lawsuits by those whose private information and communications were put on the Internet? Sony thinks they should. Or are they protected by the First Amendment protection of freedom of the press? Sony doesn’t think so. The entertainment giant hired a prominent lawyer, David Boies, to write to media outlets and threaten lawsuits if stolen information is used in any manner.

Most knowledgeable lawyers and law professors in the field, however, do not think much of Sony’s threats. UCLA law professor Eugene Volokh wrote on his Washington Post blog that Sony would likely not have a legal leg to stand on against the republishers of the stolen material, or at least the material they’ve published so far.

If reporting about and republishing stolen Internet material is not illegal and likely not a civil cause of action, then what is it? Is it news protected by the First Amendment? Does reporting on and republishing stolen information have the same constitutional protection as any other material?

These questions raise important ethical issues, but unlike the “bright line” of most laws, ethics dilemmas present few clear distinctions.

While I think that republishing or rebroadcasting stolen information in many cases is a breach of journalist ethics, I don’t want government imposing a legal standard of what information, stolen or not, should be allowed to be published. I think news outlets of any size, bloggers included, should adhere to a self-regulated standard.

And what would that standard or test be?

Film producer and screenwriter Aaron Sorkin, creator of The West Wing, The Newsroom, and numerous feature films, argued in a New York Times op-ed that unless the stolen material is “newsworthy,” for example the Pentagon Papers or facts about tobacco companies’ lies or an Enron-type scandal, stolen documents should not be published.

Sorkin clearly did not think the Sony documents were newsworthy. He called the publication of the stolen data “morally treasonous and spectacularly dishonorable.”

Who should decide whether any stolen material is “newsworthy”? Aaron Sorkin? The Guardians of Peace? You? Me?

Dean Baquet, the New York Times‘ executive editor, believes that only individual news outlets should decide what is “newsworthy.” In response to Sorkin’s editorial blast, Baquet wrote the following:

“As we’ve made clear, we have used documents surfaced by others. It would be a disservice to our readers to pretend these documents weren’t revealing and public.

“But the main issue, the main thing we consider, is how newsworthy the documents are. In that regard, I would say these aren’t the Pentagon Papers. And these aren’t Wikileaks.”

While it’s clear that Baquet believes individual media outlets should make their own republication decisions, he does seem to agree with Sorkin’s “newsworthy standard.” He just uses a different measuring stick to determine what is “newsworthy.” And so will just about every other news outlet, thus rendering the “newsworthy” standard nearly meaningless.

Michael Hiltzik, writing in the Los Angeles Times, maintains that the line on what should be published should not be as sharp as the Pentagon Papers on one side and everything else on the other. He argues that the Sony information is newsworthy because “it illuminates the thinking and actions of executives … of a major publicly traded corporation, one of the most influential entitles in one of our most important industries.”

While Hiltzik is concerned about the privacy rights of ordinary workers at Sony, he is not sympathetic to Sony or Hollywood in general. He writes, “Hollywood makes billions by manipulating reality … they’ve nurtured an entire cottage industry … People magazine, Entertainment Tonight, Oscar telecast, etc. — fed relentlessly by flacks and devoted to communicating the fantasy that Hollywood is one big happy family … Now that they’ve lost control of the PR, they’re mortified.”

While I don’t disagree with Hiltzik’s basic take on Hollywood, my concern is outweighed by my belief that people who steal information should be punished and not rewarded by publishing the data they’ve ripped off from others. And here is where I throw consistency of belief out the window and make my own exceptions to the general test of republication of stolen materials. (See my column on situational ethics.)

Decades ago, I applauded Daniel Ellsberg for stealing the Pentagon Papers that proved we were lied to about the Vietnam War. The subsequent publications by the media were clearly “newsworthy.”

What about a more current data theft issue that is clearly newsworthy — Edward Snowden’s theft of government documents that revealed massive government surveillance? If you use the “newsworthy” test, the documents clearly should have been published. But does “newsworthy” outweigh what the government and others argue is information that puts lives in danger?

These far more important ethical questions will be debated long after the current Sony hack story is relegated to just a passing mention on Entertainment Tonight. In my view, most of the material that has come out about Sony is just plain old gossip. It belongs in the trash bin of history to be deleted by one stroke key. Aaron Sorkin is right about at least one thing in this Sony hullabaloo; the Guardians of Peace are no Daniel Ellsberg.


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