- The Washington Times - Wednesday, December 24, 2014

Let’s say your computer has been hacked and now websites are posting your private emails. What can you do stop them?

The answer: Not much, according to First Amendment authorities. While the hackers can be prosecuted, news outlets and websites have free speech and free press rights to release the illegally obtained material, as long as the news organizations didn’t steal the information themselves.

That leaves Sony Pictures Entertainment and other hacking victims in a bind. Sony attorney David Boies sent letters last week to news publications, including Bloomberg, The Hollywood Reporter and Variety, urging them to stop trafficking in what he referred to as “stolen information,” but legal analysts say he may be grasping at straws.

Leonard Niehoff, a professor at the University of Michigan Law School, cited the 2001 case of Bartnicki v. Vopper, in which the Supreme Court held that a radio station had a First Amendment right to air the recording of a labor official illegally obtained by a third party.

“The Supreme Court has basically held that if a media entity comes into possession of material that’s a matter of public interest, and the media interest didn’t do anything wrong — somebody else may have done something wrong, stolen or purloined the material in some way — in every case that’s looked like that, the Supreme Court has found there’s no claim,” Mr. Niehoff said.

Constitutional law analyst Floyd Abrams said in a statement that “any broad efforts to prevent publication of the hacked materials, to require the destruction of the materials, or to seek damages resulting from publication of much of the materials appear exceedingly weak.”

That doesn’t mean there is no recourse at all for Sony, Mr. Abrams pointed out, noting that the scripts and rough film cuts released by the hackers presumably would have protection under copyright laws.

“The copyright laws provide protection from wholesale reproduction of unpublished works and other legal remedies may be available for established breaches of privacy,” he said, though “the bulk of the materials may be freely used as a source for articles.”

Sony may have a privacy argument against the first website that posted the hacked emails. The problem is that the hackers sent the documents to multiple news outlets at the same time, making it difficult to figure out who published what first.

“There’s an old saying among journalists where with some stories, it’s great to be the second person to tell it,” Mr. Niehoff said. “With the first person, you might be violating somebody’s privacy, but once the first person has told the story, when it gets retold, those same privacy concerns aren’t present.”

At that point, the hacking victim’s only recourse may be to appeal to the distributor’s sense of integrity and editorial judgment, which actually does work sometimes.

In October, Google agreed to pull from its servers hacked private nude photos of Jennifer Lawrence, Kate Upton and other celebrities after attorneys accused the search engine of exploiting and victimizing the women.

“We’ve removed tens of thousands of pictures, within hours of the requests being made, and we have closed hundreds of accounts,” Google said in an Oct. 2 statement. “The Internet is used for many good things. Stealing people’s private photos is not one of them.”

The Sony emails, released last month in a megahack linked to North Korea, included some snarky emails from executives about celebrities such as Angelina Jolie and racially tinged emails from top executives about President Obama’s movie preferences. Sony executive Amy Pascal met with the Rev. Al Sharpton last week in an effort at damage control.

The FBI is investigating the hack, but apprehending and charging the guilty parties may be next to impossible, especially if they’re in North Korea.

The hackers, who call themselves the Guardians of Peace, also made a terrorist threat against theaters that show “The Interview,” a comedy about a CIA plot to assassinate North Korean leader Kim Jong-un, which has since been pulled.

“It’s extremely hard to find a remedy apart from a remedy against the hackers, and the hackers may be uncollectable, unidentifiable, unknown and unreachable,” Mr. Niehoff said. “And so there’s an old adage in the law that for every wrong, we presumably have some form of remedy, but I’m not sure here that we actually have much of a remedy because it would be so hard to apprehend the perpetrators.”

Screenwriter Aaron Sorkin accused the publications of doing the hackers’ bidding by printing the emails, which he described as fodder for industry gossip but nothing truly newsworthy.

“Do the emails contain any information about Sony breaking the law? No. Misleading the public? No. Acting in direct harm to customers, the way the tobacco companies or Enron did? No,” Mr. Sorkin said in a New York Times op-ed. “Is there even one sentence in one private email that was stolen that even hints at wrongdoing of any kind? Anything that can help, inform or protect anyone?”

Still, Mr. Boies‘ letter on behalf of Sony may be more than an empty gesture. While the Supreme Court has never ruled against a news publication’s right to print illegally procured material, the court also has never said that it won’t do so in the future.

“I think that the letter that’s been sent and some of the positioning they’ve been doing is just related to the possibility that a scenario might come along that looks different than the kinds of scenarios the Supreme Court has considered,” Mr. Niehoff said. “And maybe lurking out there somewhere is a case where there’s a claim.”

Until then, however, those who don’t want to see their private emails plastered on the front pages of websites and newspapers may want to invest in better online security. Or follow the advice of those who say never to put anything in an email that you wouldn’t want to see go public.

“It could happen to anyone,” Mr. Niehoff said. “And it’s disconcerting to realize how unprotected we are in this brave new world.”

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