Scarinci Hollenbeck, LLC, LLCScarinci Hollenbeck, LLC, LLC

Firm Insights

Sony Hack: The Firestorm

Author: Scarinci Hollenbeck, LLC

Date: January 12, 2015

Key Contacts

Back

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 Hack

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.

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Scarinci Hollenbeck, LLC, LLC

Related Posts

See all
Before You Buy: Managing Real Estate and Permitting Risk for BESS Projects in New York and New Jersey post image

Before You Buy: Managing Real Estate and Permitting Risk for BESS Projects in New York and New Jersey

For developers pursuing battery energy storage system (BESS) projects, finding the right property is only the beginning. BESS site selection is as much a legal and transactional exercise as a real estate decision, with risk analysis central to the project’s ultimate success. Key Takeaways The core questions for BESS site selection in New York and […]

Author: Nicholas Wall

Link to post with title - "Before You Buy: Managing Real Estate and Permitting Risk for BESS Projects in New York and New Jersey"
What Business Owners Get Wrong Before Meeting a Litigation Attorney post image

What Business Owners Get Wrong Before Meeting a Litigation Attorney

What should you expect when meeting a litigation attorney about a business dispute? You should expect to describe the dispute in your own words, hand over the most important documents, flag any deadlines or immediate threats, and leave with a clearer picture of the problem, what information is still needed, and the likely next steps. […]

Author: Michael Mietlicki

Link to post with title - "What Business Owners Get Wrong Before Meeting a Litigation Attorney"
Arbitration vs. Litigation vs. Mediation: What New Jersey Businesses Should Know Before Signing a Contract post image

Arbitration vs. Litigation vs. Mediation: What New Jersey Businesses Should Know Before Signing a Contract

Arbitration resolves disputes privately before an arbitrator whose decision is usually final, while litigation resolves them in court with full rights of appeal. Whether a business ends up in arbitration or litigation is often decided when it signs the contract, long before any dispute arises. Key Takeaways When facing a contract dispute, carefully consider your […]

Author: Graham Staton

Link to post with title - "Arbitration vs. Litigation vs. Mediation: What New Jersey Businesses Should Know Before Signing a Contract"
Can You Own Part of a New Jersey Business Without a Written Agreement? post image

Can You Own Part of a New Jersey Business Without a Written Agreement?

Can you own part of a business in New Jersey without a written agreement? Yes, it is possible. Under New Jersey’s Uniform Partnership Act, a partnership can arise when two or more people carry on a business as co-owners for profit, whether or not they ever intended to form one. Ownership doesn’t necessarily depend on […]

Author: Michael Mietlicki

Link to post with title - "Can You Own Part of a New Jersey Business Without a Written Agreement?"
Crisis-Proofing Your New Jersey Business: Building a Crisis Response Plan Before You Need One post image

Crisis-Proofing Your New Jersey Business: Building a Crisis Response Plan Before You Need One

For New Jersey businesses, crisis preparedness should be viewed as a legal and operational function, not simply an emergency-management exercise. A well-designed crisis response plan can help preserve evidence, protect confidential communications, meet reporting obligations, limit unnecessary exposure, and prevent an already difficult situation from becoming a larger legal problem. Key Takeaways A serious crisis […]

Author: Sean M. Pena

Link to post with title - "Crisis-Proofing Your New Jersey Business: Building a Crisis Response Plan Before You Need One"
Monmouth County's Next Development Wave: What Developers and Investors Need to Know post image

Monmouth County's Next Development Wave: What Developers and Investors Need to Know

Monmouth County is entering a significant new phase of development. For those looking to acquire property or undertake a new project, understanding the market opportunity is only the beginning. The more important question is whether a particular property can actually be developed as contemplated and what approvals, agreements, and other conditions will be required to […]

Author: Donald M. Pepe

Link to post with title - "Monmouth County's Next Development Wave: What Developers and Investors Need to Know"

No Aspect of the advertisement has been approved by the Supreme Court. Results may vary depending on your particular facts and legal circumstances.

Sign up to get the latest from our attorneys!

Explore What Matters Most to You.

Consider subscribing to our Firm Insights mailing list by clicking the button below so you can keep up to date with the firm`s latest articles covering various legal topics.

Stay informed and inspired with the latest updates, insights, and events from Scarinci Hollenbeck. Our resource library provides valuable content across a range of categories to keep you connected and ahead of the curve.

Let`s get in touch!

* The use of the Internet or this form for communication with the firm or any individual member of the firm does not establish an attorney-client relationship. Confidential or time-sensitive information should not be sent through this form. By providing a telephone number and submitting this form you are consenting to be contacted by SMS text message. Message & data rates may apply. Message frequency may vary. You can reply STOP to opt-out of further messaging.
“If you would like to submit a file, please email it directly to info@sh-law.com.

Sign up to get the latest from the Scarinci Hollenbeck, LLC attorneys!