Sony tells media to hide hacking news, but threats ring hollow

As Sony’s misery grows over a massive hacking incident, the studio is lashing out in a desperate way: it is warning news agencies to destroy any leaks they receive, or else Sony will hold them responsible for any damages.

The letter, which is signed by super lawyer David Boies, was sent to various outlets, including the New York Times, the Hollywood Reporter and security blogger Brian Krebs:

It instructs recipients to notify Sony if they receive information related to the hacking and to confirm that “destruction has been completed.” Or what? Here’s the threat:

If you do not comply with this request, and if the Stolen Information is used or disseminated by you in any manner, [Sony] will have no choice but to hold you responsible for any damage or loss … including … any loss of value of intellectual property and trade secrets.

Legal scholars, however, give little credence to Sony’s threat, pointing to a Supreme Court case from 2001 that clearly shields the news outlets:

The case in question involves a radio DJ who broadcast parts of a recording that had been obtained in an illegal fashion. As the court noted, the First Amendment protects those who publish or describe such information (provided they did not have a role in obtaining it).

As a lawyer who has pled famous constitutional cases before the Supreme Court, Boies clearly knows the threats are empty. So why is he making them? It’s hard to know for sure, but the likely explanation is that Sony is desperate for somebody to do something to respond to the embarrassing series of hacks, which have disclosed everything from racist emails about President Obama to sensitive financial figures from the studio. The hackers, who want to stop the release of an impending Seth Rogen film that mocks North Korea, have also promised a “Christmas surprise.”

Sony’s discomfort is clearly understandable. But while the “stolen” (Sony’s word) information raises ethical issues, like those described by Aaron Sorkin, the studio doesn’t have appear to have a legal leg to stand on.