Is The Threat of David Boies To Media Over Use Of Hacked Documents Real?

Sony_Entertainment_Network220px-David_Boies_2011_ShankboneThere are continuing rumblings in the media about the threat of Sony Pictures Entertainment (SPE) lawyer David Boies over media sites using material hacked from the studio, including embarrassing emails where executives dish on leading stars like Angelina Jolie and the disclosure of contract information. Boies has warned that such material must be ignored or destroyed and suggested legal repercussions in the use of “stolen information.” But how serious is this threat? In my view, not very.

I should state at the outset that I have had the pleasure of appearing with David at various speeches and I like him a great deal. More importantly, I respect him greatly as a lawyer. Finally, he is doing his best to protect a client who has been devastated by hackers who some believe originate in North Korea (where the “Dear One” is royally ticked over a mocking movie based on his character).

The hack attack is the Wikileaks scandal of Hollywood. Stars are portrayed as spoiled brats and dysfunctional idiots while differences in pay are being bantered about by pundits. Boies has tried to stop the torrent of bad press with a letter sent to media “to ensure that you are aware that SPE does not consent to your possession, review copying, dissemination, publication, uploading, downloading or making any use of the stolen information, and to request your cooperation in destroying the stolen information.” He further warns that the publication of this material furthers “an on-going campaign explicitly seeking to prevent SPE from distributing a motion picture.” That suggests that media could be sued for not just using the material but aggravating the injury from this campaign. Boies states that his client “does not consent to your possession, review, copying, dissemination, publication, uploading, downloading, or making any use of the stolen information.” In case there is any confusion, Boies warns that “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.”

The_Interview_2014_posterThe fact is that SPE has little ability to threaten the “Hermit Kingdom” or Kim Jong Un. Ironically, activists are striking back by dropping copies of the movie “The Interview” over North Korea by balloon.

Everyone from the New York Times to the Hollywood Reporter have received the letter.

Since the media were not involved in the hacking (for which people can be legitimately sued as well as prosecuted), the First Amendment protects the use of this information in my view as a matter of public interest. In 2001, the Court ruled 6-3 in Bartnicki v. Vopper, that a radio broadcaster that aired an illegally recorded cellphone conversation between a teachers’ union president and a top union negotiator was not liable given the protections of the First Amendment. Former Justice John Paul Stevens wrote that “A stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern.”

Another case should be familiar to Christopher Dodd, who has been working to control the damage of the hack as Chairman and CEO of the Motion Picture Association of America. His father, Senator Thomas Dodd, sued two investigative reporters, Drew Pearson and Jack Anderson, over their use of leaked documents that ex-staffers took from his Senate office. In Pearson v. Dodd, the

The court ruled against Dodd’s dad:

Here we have separately considered the nature of appellants’ publications concerning appellee, and have found that the matter published was of obvious public interest. The publication was not itself an invasion of privacy. Since we have also concluded that appellants’ role in obtaining the information did not make them liable to appellee for intrusion, their subsequent publication, itself no invasion of privacy, cannot reach back to render that role tortious.

This is not to say that a credible argument cannot be made. Indeed, there are a few troubling cases of prior restraint, including one this year. However, those district court judges who have ignored constitutional protections and imposed prior restraints have often been reversed. This was the case in the clearly improper prior restraint imposed against Business Week magazine in publishing documents that were placed under seal in Procter & Gamble Co. v. Bankers Trust Co. The Sixth Circuit reversed, 78 F.3d 219 (6th Cir. 1996) and stressed that prohibiting the publication of a news story is “the essence of censorship.” The court ruled:

This appeal raises the issue of whether the bedrock First Amendment principle that the press shall not be subjected to prior restraints can be set aside when a federal court perceives a threat to the secrecy of material placed under seal by stipulation of the parties. We are guided by the holding of the First Circuit in In the Matter of Providence Journal Company that even a temporary restraint on pure speech is improper “absent the most compelling circumstances.” 820 F.2d 1342, 1351, modified on reh’g by 820 F.2d 1354 (1st Cir. 1986), cert. granted and dismissed on other grounds .

Those compelling circumstances are extremely rare and pretty dire. It is not really the type of thing that arises when Angelina Jolie is called a “minimally talented spoiled brat.”

In other words, the letter falls short of a serious threat against the media. I would however love to see Boies sue the “Dear One.” That would make for not just a great case but an even greater movie. Could The Lawsuit be a sequel to The Interview?

Here is the letter: Boies Letter.

Source: Hollywood Reporter

26 thoughts on “Is The Threat of David Boies To Media Over Use Of Hacked Documents Real?”

  1. Correction & clarification … I said:

    it could (should) have been kept on a separate Db and linked by anonymous identity number, not embedded…but somebody was lazy

    I should have said “kept on a separate table and linked by query scripts.” As a standalone table, it can be redacted … e.g., denied access if one didn’t have the appropriate Role & Permissions for access.

  2. I wonder if Sony can argue that the emails and other electronic media were Intellectual Property and go after those who transmit what was stolen as violating copyright laws.

  3. Wait a minute here…did I read here that Manning and Snowden “hacked” databases to get their information. My understanding is that simply they “walked right in” because they had officially assigned (foolishly) access to multiple global SSID’s … as well as acquired the passwords of others, in Snowden’s case, to do so on those SSID’s outside his official role. Simply taking what is in front of you, even with “borrowed” passwords and login ID’s is not hacking which requires some sort of encryption cracking.

    If I misunderstood what Manning and Snowden did, somebody please provide me a credible link asserting that it was “hacking” per se. Or was the word “hacking” used, in error, as some omnibus term for what they did.

    I ask simply because I had nearly complete access (save redacted tables where my need to know “Role” wasn’t sufficient) to 4 US Army global SSID’s and everything was right there to be read with my access. A lot of normally redacted information was embedded in what I saw (it could (should) have been kept on a separate Db and linked by anonymous identity number, not embedded…but somebody was lazy) and my clearance required that I redact the sensitive items myself before using the remainder for any purpose. Had I just downloaded sundry Db tables, embeds and all, to a drive, then published them, it would not have been “hacking”…just theft and a violation of my clearance and role. Another consideration, of course, was that I respect Murphy’s Law and I don’t care for Leavenworth.

    The de rigueur 90 day cycles (in my day) for renewing ID’s and Passwords can’t cover everything, and all days. Good Lord I had some 30+ security related ID’s and Passwords to manage…it even confused me at times. I never shared a one of them with anyone, even co-workers with the same clearances…you adhere to the need to know Role and it is based upon you, not your entire office. I never gave them to the Db Administrators over me either. Snowden was allegedly a “Db Administrator” … which leaves a question of why he needed to borrow passwords, since he would have had access to all of them if he really was a Db Admin. However, I never even needed to “hack” anything to see everything on the servers I had appropriate Roles for at the time.

  4. Well Nick, I think you just pretty much hit the nail on the head with the BFH at 11:06. I was thinking that, and wasn’t sure it was relevant, but after reading your post, I guess it certainly is. Amazing. Unless I could have a team made up of something other than humans, cats, monkies, hogs, or talking birds, I really don’t have a chance of holding onto one. BUT, now if I can blame someone else… BTW, this just took an interesting turn…

  5. If the “racist” sony emails show nothing more, it shows them to be shallow people interested in one thing, MONEY. Money for themselves. I don’t see any racism there, just spoiled rich brats.

  6. As long as they don’t publish the amount he has lost on the Bears this season he should be fine.

  7. So, what I’ve read so far is that a “media outlet” that receives emails, files, etc that were stolen from a private company and that publishes those emails, files, etc is protected under Constitutional Freedom of the Press rights. OK, then if the hacker stole scripts that were copyrighted and gave them to an entertainment magazine, that magazine could publish the scripts with impunity. Or if Timmy stole the Colonel’s secret recipe and the NYTimes published it, then the NYTimes is protected. I still don’t see how that’s any different than stealing my watch or wearing my watch that you knowingly got from the thief.

    OK, what if I hack into each Professor Turley’s home computer, got all his financials, gave them to The Turley Times (an anti-Turley news rag), and they publish his tax returns, prenup agreement, credit card numbers, and security system front door code. I’m a crook but the TTTimes is off the hook.

  8. There is an awful lot of moral relativism in this country. These limo liberals who applauded the outing of racist Donald Sterling via PRIVATE conversations, are not shocked and appalled when their dirty laundry is aired. Hypocrisy, they name is Hollywood.

  9. Well . . . we all act more civilized while acting under our own names. How many behave under the protection of anonymity or aliases is another matter.

  10. Hacking and theft are a real problem in the movie industry.

    I recall that The Incredible Hulk revenue was severely damaged when someone stole, and distributed, a rough cut, without the final special effects. It looked so crudely done that audiences panned it. Unfortunately, when the final cut movie actually came out, the reputation of the movie had already been irreparably harmed. The studio lost millions.

    I haven’t read the exchange between studio execs over their comments re Obama. I’ve heard them described as anything from blatantly racist to merely condescending and elitist.

    What I do know is that none of us would relish having our private, unguarded conversations and jokes aired publicly. We all act more polite and civilized in company than in private.

  11. Boies is very dyslexic. He did not learn to read until the third grade and is still a slow reader. Incredible how he has overcome that. I love people who simply press on no matter what. And, I don’t like whiners.

  12. There is a lot of irony here. Isn’t SPE part of the industry that praised Oliver Stone for making the movie Snowden, in which movie Edward Snowden is portrayed heroically for hacking into computer systems, then releasing hacked materials to various media for publication?

    If there are any stories here, they are (1) Sony neglected to protect its computer systems against hacking, and (2) people say in private writings things they would not say in public. Neither story should be a surprise.

    Mr. Bois will use his excellent skills to little avail, i think.

  13. Remember, our prez and AG have tapped and hacked reporters doing their jobs investigating this administration. Liberals HATE the 1st and 2nd Amendments. We see examples here and in the real world on a daily basis.

  14. StrevenH, Absolutely correct. Although, having investigated receiving stolen property cases for a prosecutor’s office, it can be tough to prove beyond a reasonable doubt. That said, buying a hot TV does not involve the First Amendment protection of a free press. That’s the rub.

  15. ” aren’t I guilty of “possession of stolen goods”? Or is that just a Law and Order construct?”

    Does it make a difference if Timmy gives you the emails, gives you a copy of the emails, or gives you summaries describing the emails?

    What about when you publish? Does it make a difference if you news paper or web site publishes copies of the emails or articles based on your understanding of the content of the emails?

    I bet Boies is wishing emails were a lot more like a 25 inch tube TV.

  16. So, I’m not a lawyer, thankfully. But here’s something I don’t understand. If Timmy steals a TV from a home and gives the TV to me and I know it’s stolen, aren’t I guilty of “possession of stolen goods”? Or is that just a Law and Order construct?

  17. I am not convinced this is a North Korean plot. It has the smell of a disgruntled employee or former employee. In craps parlance, Boise is betting on a 12 to roll on the dice. The only remedy I see is against the hacker. There is real news in these hacks. JT failed to mention the head of Sony, Amy Pascal and a major producer, Scott Rudin, making fun of Obama. Now, some call the email exchange between the two, racist. I don’t see it as racist, but do see their mocking as hypocritical, since we know they kissed Obama’s ass @ his fundraiser. Seth Rogen was on Howard Stern is a profane rant about these emails, showing just how vapid, insular and entitled these prissy stars are in real life. These are the people that look down upon the majority of us in this country who are not lockstep ultra liberal like themselves. This exposes many stars as hypocritical and just plain stupid. Limo liberals.I LOVE IT!!

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