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Sony Faces Constitutional Challenges after Hacking Incident
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Sony may hit a dead end if it tries to argue its hacked information should not be publicized.

Summary: Courts may rule in favor of news media outlets if Sony argues that its private information, stolen by hackers, should not be released to the public by the media.

According to the Wall Street Journal, Sony is scrambling to protect itself after hackers obtained confidential information from its servers and leaked it on the Internet. On Sunday, David Boies, Sony’s attorney, sent a letter to various media outlets, including the New York Times, Bloomberg News, and the Wall Street Journal. The letter cautioned that these outlets should not publish or even use any information released in the internal files that were stolen last month.


However, Sony may stumble upon First Amendment issues in its efforts to keep the documents under wraps. Many legal experts predict that Sony’s protests would fall on deaf ears if they were heard in court. University of Minnesota Law School professor William McGeveran, who focuses on information law and data privacy, said, “It would be very hard for Sony to block media outlets from publishing most anything that’s in the public interest.” In addition, courts “are quite deferential to the established media and its judgment about what’s newsworthy.”

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Eugene Volokh is a UCLA law professor and agrees that Sony would lose its battle in the courtroom, “at least as to most of the information that media outlets would want to publish.” Both Volokh and McGeveran noted two key cases.

Read more about Volokh’s career here.

Bartnicki v. Vopper is a Supreme Court case from 2001. The court ruled in favor of a radio broadcaster that played a cellphone conversation between a teachers’ union president and a union negotiator on the air. The conversation had been recorded illegally, but the court noted that the radio station “played no part in the illegal interception,” therefore allowing First Amendment rights to supersede any privacy concerns. “A stranger’s illegal conduct does not suffice to remove the First Amendment shield from speech about a matter of public concern,” the opinion read.

Last year, the Fourth Circuit ruled that Facebook “likes” are protected by the First Amendment.

The second case is from the U.S. Court of Appeals for the D.C. Circuit. The ruling, from 1969, involved a lawsuit filed by former U.S. Senator Thomas J. Dodd against two investigative reporters, Jack Anderson and Drew Pearson. Dodd alleged that the articles the reporters published were based on leaked documents that former staffers stole from Dodd’s office. Volokh explained, “When information is on a matter of public concern, the court held, the fact that it was illegally leaked doesn’t make publishing it an invasion of privacy.”

Of course, the current precedent does not mean that courts would never rethink lines drawn in those cases, McGeveran explained. “The problem is, of course, so much more of our communication is stored and transmitted in a way that makes it much more vulnerable to theft. You can analogize between Internet world and pre-Internet world, but the scale is totally different.”

Legislators are discussing online security in light of the hacking.

McGeveran noted a recent Supreme Court ruling that held cops must almost always obtain a warrant before searching mobile devices that are seized from suspects during an arrest. Volokh added that he does not think the issue is black and white. “[W]hile the Sony documents are likely to be seen as of public concern (since they deal with the behavior of a large and highly economically and culturally significant company), one can argue that they aren’t of great public concern,” he commented.

As far as protecting oneself from hacking, Volokh suggested, “The only effective way to deter it and to minimize the harm caused by it is to ban third-party publication of the leaks. But on balance, I doubt that these distinctions will carry much weight, given the holding of the Bartnicki majority opinion.”

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