Tech Law

Sony Sends News Outlets a Stern but Toothless Warning

On behalf of Sony Pictures Entertainment, high-powered attorney David Boies sent a letter to a number of news outlets Sunday demanding that the organizations refrain from publishing stories based on material hackers recently stole from the company and that they destroy any of the pilfered data in their possession.

The letter to the news organizations, including The New York Times, Variety and the Hollywood Reporter, claims the information stolen from Sony is “protected under U.S. and foreign legal doctrines protecting attorney-client privileged communications, attorney work product, and related privileges and protections.”

The stolen data contains “intellectual property, trade secrets and other business secrets,” wrote Boies.

Any company in possession of the stolen data should take all reasonable action to prevent the material from being examined, copied or disseminated, and should arrange for the destruction of all copies of the stolen information, he added.

Boies went on to warn the news outlets:”If you do not comply with this request, and the stolen information is used or disseminated by you in any manner, [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, including any damages or loss to SPE or others, and including, but not limited to, any loss of value of intellectual property and trade secrets resulting from your actions.”Boies did not respond to our request to comment for this story.

Between the Lines

Despite the sharp tone, it’s unlikely the news outlets are perturbed.

“Boies doesn’t actually make any legal claim or legal threat. It’s a request,” said Nate Cardozo, a staff attorney with the Electronic Frontier Foundation.

“What the letter is saying is, ‘We would appreciate it if you — the news organizations — would stop reporting,'” he told TechNewsWorld.

“I would be shocked if Sony filed a lawsuit against the news organizations that are reporting on the documents,” Cardozo added.

The U.S. Supreme Court ruled in Bartnicki v. Vopper that news organizations can’t be held liable for publishing information that was illegally obtained if the organization had no part in the illegal act performed to obtain the information, he explained.

“We have a free press in the United States,” he said,”and the press has to report on facts, even if they were obtained illegally.”

PR Move?

There is no legal force behind the Sony letter, said Clay Calvert, a journalism professor at the University of Florida.

“The media outlets lawfully obtained this information. They didn’t aid or abet or conspire in the initial theft, and the information is of public concern,” he told TechNewsWorld.

“This letter is an example of people who are exposed trying to exert pressure on everyone not to publish their exposure,” Calvert said. “This is all about public relations now. Sony doesn’t want people to know how it refers to its stars in negative ways, because it’s going to hurt their business.”

If it is a public relations move, it’s a bad one, suggested John Carroll, a mass communications professor at Boston University.

“To lean on journalists when Sony created this problem for themselves is pretty ham-handed,” he told TechNewsWorld.

“Sony’s only hurting itself with these threats,” Carroll added. “It’s not a winning strategy, and there’s no end game for them.”

If Sony’s position against the news organizations is so weak, why send the letter in the first place?

“It could be a statement by Sony saying they care about their former and current employees,” Northeastern University journalism professor Dan Kennedy told TechNewsWorld. “Sometimes you make a futile legal threat just so you can be seen as doing something.”

John Mello is a freelance technology writer and contributor to Chief Security Officer magazine. You can connect with him on Google+.

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