David Boies' Letter About Hacked Sony Data Is Probably Bluster

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By Mark Wilson, Esq. on December 16, 2014 11:04 AM

For a few weeks now, 11,000 gigabytes of information stolen from Sony by as-yet unknown hackers have been floating around the Internet. The eclectic data range from private, racially tinged jokes emailed between producer Scott Rudin and Sony exec Amy Pascal about President Obama's favorite movies, to ideas for ludicrous sequels (like a "21 Jump Street"/"Men in Black" crossover), to whole copies of finished, but unreleased, films.

Well, Sony's pretty sick of hearing about it. To that end, they've decided to hire attorney David Boies to make some legal threats via demand letters.

David Boies Is on the Case

Surely you remember Boies. He and former solicitor general Ted Olson basically won same-sex marriage; Boies also represented Vice President Al Gore in Bush v. Gore. Now, he's working for Sony.

Boies sent demand letters to various media outlets over the weekend, including The New York Times and The Hollywood Reporter. The letter lets media outlets know that they should notify Sony if they're in possession of any confidential or privileged material (which is to say, all of the gigabytes) and that they should delete that material.

The letter then gets serious: "If you do not comply with this request, and the Stolen Information is used or disseminated by you in any manner, [Sony] will have no choice but to hold you responsible..." and so on.

Does It Matter Who's on the Case?

Does this threat carry any weight? Probably not, Electronic Frontier Foundation deputy general counsel Kurt Opsahl told The New York Times. Certainly not all of the information -- like lists of employee Social Security numbers -- is newsworthy, but other stuff could be.

News outlets can report on information they obtain, even if the original source acquired that information illegally, so long as the news outlet didn't play any part in obtaining it originally. That's according to Eugene Volokh of The Volokh Conspiracy, citing the 2001 Supreme Court decision in Bartnicki v. Vopper, about the broadcast of an illegally intercepted conversation.

Already, we've learned some information that's arguably relevant to the public. Jennifer Lawrence got less of a cut of the profit from "American Hustle" than male co-stars Christian Bale and Bradley Cooper. Tom Cruise was considered for the role of Steve Jobs in the Aaron Sorkin's biopic. And Sony made almost $6 million thanks to a "Seinfeld" syndication deal.

Sure, this information might be "confidential," but as we've learned, slapping "this is confidential" onto something doesn't make it so. And on the Internet, saying "don't publish that" only makes things worse.

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