The recent hack into systems at Sony Pictures Entertainment has spurred demands by the company that the news media refrain from publishing the plundered data.
On Sunday, lawyers for Sony delivered letters to news outlets insisting that they destroy the leaked emails, documents and other information in their possession. According to the letter, which the company’s lawyer, David Boies, sent on the studio’s behalf:
“The stolen information includes, but is not limited to, documents and information protected under U.S. and foreign legal doctrines protecting attorney-client privileged communications, attorney work product, and related privileges and protections, as well as private financial and other confidential information and communications of [Sony’s] current and former personnel and others, confidential personal data, intellectual property, trade secrets and other business secrets and related communications, and other confidential information.”
The description seems largely accurate, based on the leaks that have been reported. They include emails that contain disparaging comments by executives, information about the health of nearly three dozen employees and their families, and at least four unreleased films.
There’s reportedly more to come. The hackers, who call themselves Guardians of the Peace, claim to have taken 100 trillion bytes of documents and other material. Thus far they’ve released an estimated 235 gigabytes worth of files.
Sony’s demands on the press garnered support from some in the creative community. “As demented and criminal as it is, at least the hackers are doing it for a cause,” screenwriter Aaron Sorkin wrote in a Times op-ed. “The press is doing it for a nickel.”
Movie producer Judd Apatow compared publicizing the emails of Sony executives to publishing nude selfies of Jennifer Lawrence and other celebrities.
Releasing private Sony e mails to hurt people is the same as releasing nude photos of Jennifer Lawrence. Why are they ok to print?
— Judd Apatow (@JuddApatow) December 11, 2014
The news media itself wrestled with whether to publish the information. Andrew Wallenstein, co-editor-in-chief of Variety, considered a series of arguments before concluding that publishing the leaks is inevitable.
“Journalism is, in some sense, permissible thievery,” Wallenstein wrote last Thursday. “Occasionally we catch wind of what our subjects would rather us not know, and we don’t hesitate to report it if it contributes to an understanding of what we’re writing about.”
That’s not to condone the theft of information. One way to incentive hacking is to give hackers the expectation that whatever they put into the public domain will find news organizations ready to amplify it.
Still, like Wallenstein, I agree that the leaks – with the exception of personal information about the health or identities of specific people – deserve to be published. While the news media may, as Wallenstein notes, appear to be doing the hackers’ bidding, not publishing the information would be worse.
There’s little legal basis to refrain from publishing most of the information. Contrary to Boies’ assertion, the attorney-client privilege matters not at all here. The privilege applies in a judicial proceeding in which a lawyer may be called as a witness. In short, it holds that an attorney may not divulge matters communicated by a client in confidence.
David Boies cannot be forced to testify in court about matters communicated to him by his client Sony. But the privilege has nothing to do with the press.
Of course, the Constitution has everything to do with the press. Broadcasting a recording of a conversation that was picked up illegally is protected by the First Amendment.
Then there’s the apparent double standard implicit in Sony’s demand on the press to stop publishing. As Dawn Chmielewski, a reporter who covers the tech industry for Re/code, observed, referring to “The Interview,” the film from Sony that is said to have provoked the hacking:
“Sony has been talking about the importance of releasing this film and not being cowed, that the studio has a right to free expression under First Amendment concepts. So I find it interesting that now the same studio is serving journalists who are reporting on this devastating hack trying to curb our free expression rights here.”
Should the media stop reporting on the #Sony hacks? http://t.co/Xk7yy5TVwP @DawnC331 of @Recode weighs in: http://t.co/EEZKWICYMD
— New Day (@NewDay) December 16, 2014
Though hackers have dumped copyrighted movies onto file-sharing sites, news outlets have avoided republishing the material to an extent that would constitute infringement. Gawker, for example, published a 30-second clip of “The Interview,” which depicts as comedy a plot to assassinate Kim Jong-un, the North Korean leader. As Gawker sees it, the film has become newsworthy.
That judgment was affirmed late Wednesday, when Sony cancelled the film’s release. The move followed statements by theater owners that they would not show the movie, which has elicited threats of terror.
What about ethical arguments for refraining from publishing the leaked material?
Wallenstein distinguishes between reporting on the government and reporting on Sony, which of course is a corporation. “Both are sizable institutions, but am I, a journalist, entitled to see every last spreadsheet a private company has even if they were stolen just because I am reporting on Sony the way, say, Glenn Greenwald reports on Snowden?” he asks.
No, and yes.
In some ways, corporations hold as much sway over society as governments do with a fraction of the transparency. That’s true of Hollywood but it’s also true of the financial industry, the pharmaceutical industry and many others. The correspondence of U.S. presidents becomes public for everyone to read eventually. It’s hard to imagine a corporation giving the public access to the correspondence of a former CEO.
Business tends to be opaque. For all the financial results that companies file, press releases they issue and tweets they send, the fact remains that many companies control tightly the information that flows from them. The breakdown of a corporate spin machine is itself news.
It’s also impossible to report on the theft at Sony without describing what was stolen. As Wallenstein notes:
“Were a publication to report on the fact of the Sony hack and merely allude broadly to the data that has been disclosed, a tiptoe dance around the data itself begins. To convey the enormity of what Sony had stolen without any degree of specificity is to feel the quicksand pull of what’s so awfully hard to avoid here.”
Though he may have meant to type “enormousness,” Wallenstein has a point. It’s difficult to report a story about a hack without describing what was hacked. Reporting that an email exchange between Sony co-chairwoman Amy Pascal and movie producer Scott Rudin included disparaging comments by Rudin about Angelina Jolie would leave you asking the obvious question of what those comments happened to be. If I write that Rudin referred to Jolie as a “minimally talented spoiled brat,” you get it instantly.
What about Apatow’s argument? Is reporting the documents plundered by hackers tantamount to publish nude selfies of ingénues? Actually, the case for publishing the documents is much stronger. Publishing photos that someone never intended to be public violates her privacy solely for the purpose of gratifying others.
Publishing the details of business at Sony, on the other hand, sheds light on an industry. As Anne Helen Peterson writes in BuzzFeed:
“These conversations were private, but the art they produced has very public, if often sublimated, ramifications. The Lawrence hacks don’t contribute to any understanding save what Lawrence’s breasts look like. The Sony hacks speak loudly, and at length, about contemporary film industry and its generation of popular culture.”
Journalists use the term news judgment to refer to one’s ability to anticipate what does and does not constitute news. “These aren’t new challenges,” Ben Smith, BuzzFeed’s editor-in-chief, told Peterson. “Some of the greatest revelations in American history have come from sources with dubious or outright destructive motives.”
As news judgment suggests, the media has the burden of weighing the capacity of information to substantiate and explain. That includes an obligation not to injure private citizens maliciously or recklessly. But it includes a responsibility to illuminate too.