Sony Goes One Ridiculous Step Further: Threatens To Sue Twitter Over Leaked Email Screenshots

from the don't-they-have-lawyers-who-understand-the-law dept

David Boies is a bigtime lawyer -- perhaps one of the most famous lawyers around. He worked on the antitrust cases against both IBM and Microsoft. He was Al Gore's lawyer over the contested 2000 election. He was even Napster's lawyer when it got sued by the RIAA. Of course, he also represented SCO in its ill-fated lawsuits. He was Oracle's lawyer in its lawsuit against Google over the use of Java in Android. Come to think of it, Boies -- despite all his fame -- seems to come out on the losing end of an awful lot of these high profile lawsuits. And, these days, he's representing Sony Pictures in trying to deal with the hack. As mentioned, a week or so ago, he sent off a bunch of very ill-advised threat letters to news publications writing about the Sony hack (tragically, we never received one, though someone from Boies' office did appear to call us and hang up before leaving a message -- seriously). Then, we just had a story about someone from Sony threatening a Twitter user for posting screenshots from leaked emails.

But, now, Boies has taken it up a notch and is apparently threatening to sue Twitter itself for not blocking those screenshots:
The letter—sent from David Boies, the lawyer Sony has hired to help guide it through the aftermath of the hack, to Vijaya Gadde, Twitter’s general counsel—says that if “stolen information continues to be disseminated by Twitter in any manner,” Sony will “hold Twitter responsible for any damage or loss arising from such use or dissemination by Twitter.”
You have to assume that someone with Boies' stature, or at least one of the young lawyers that must be employed by his firm, is familiar with Section 230 of the CDA, because this is a classic case in which Twitter has absolute immunity from any kind of legal threat. And just the fact that Boies would threaten Twitter over this seems monumentally stupid. Not only does it make Boies and Sony look like bumbling fools, it just calls more attention to the fact that people are tweeting details from the Sony hacks.

You can read the full letter [pdf], which was provided by Vice's Motherboard blog which broke this story, and see how ridiculous this is. Most of the letter is really focused on arguing that Twitter should kill the account of the user we mentioned yesterday who Sony is trying to intimidate. It goes through all sorts of twists and turns to argue that the user, Val Broeksmit, is breaking Twitter's terms of service and his account should be closed. It mostly focuses on the tired publishing "Stolen Information" as if that's a thing. So Boies argues that it violates Twitter's terms of service, and then throws out a somewhat random selection of laws -- almost all of which certainly don't apply to Broeksmit or Twitter:
We understand that the Account Holder’s publication of this Stolen Information is (and any other account holder’s similar use would be) in violation of numerous provisions of Twitter’s Terms of Use, including the prohibitions against (i) publishing copyrighted materials and “other people's private and confidential information... without their express authorization and permission,” and (ii) use of Twitter “for any unlawful purposes or in furtherance of illegal activities.”

The possession, use, and publishing of the Stolen Information implicates numerous federal and California state laws, including, but not limited to, the Computer Fraud & Abuse Act (18 U.S.C. § 1030), the Copyright Act (17 U.S.C. §§ 501, et seq.), the California Comprehensive Computer Data Access & Fraud Act (Cal. Penal Code § 502), California's Stolen Property Law (Cal. Penal Code § 496), the Uniform Trade Secrets Act (Cal. Civ. Code §§ 3426, et seq.), and the California Unfair Competition Law (Cal. Bus. & Prof. Code §§ 17200, et seq.), among others, especially when such actions are taken knowingly in furtherance of federal and state crimes committed by the perpetrators, including extortion.
Of course, here's the main problem: while some of the laws likely apply to whoever hacked Sony, basically none of them apply to someone then publishing the leaked documents. As has been explained time and time again, the First Amendment protections for publishing such information are pretty strong and there's miles of case law to support that. Boies' attempt to get around that is a massive stretch. His argument that posting this information violates Sony's copyright is, of course, ridiculously weak. The fair use arguments for publishing such info are very strong. Even worse is that the CFAA claim applied not to the original hackers, but to Twitter users posting information, seems based on Boies pretending that a terms of service violation is a form of hacking. But that's a theory (thankfully) been rejected in recent years by the courts. The state law claims also seem fairly weak on a variety of levels and just reek of piling on.

And as Popehat points out, Boies may be committing an ethical violation in using threats of criminal prosecution (under the CFAA -- which has both criminal and civil parts) to gain civil advantage -- which violates California's rules of professional conduct for lawyers. Of course, these are the kinds of rules that aren't often applied to lawyers, and especially not those with Boies' stature.

Taking it a step further, even if Broeksmit were breaking the law, Twitter is -- as mentioned -- protected from nearly all liability via Section 230 of the CDA. Not that Boies appears to care:
If Twitter does not comply with this request, and the Stolen Information continues to be disseminated by Twitter in any manner, SPE will have no choice but to hold Twitter responsible for any damage or loss arising from such use or dissemination by Twitter, including any damages or loss to SPE or others, and including, but not limited to, any loss of value of intellectual property and trade secrets resulting from Twitter’s actions.
Yeah, that's not how the law works. Of course, Boies brings up intellectual property because the CDA explicitly doesn't apply to intellectual property -- but, again, the IP claims raised by Boies are already pretty weak and Twitter has other pretty strong protections for the copyright side of things. Furthermore, Twitter would have a strong argument that Boies is just claiming IP as a weak attempt to get around the Section 230 protections. Finally, it would seem that this is a pretty clear attempt at a SLAPP, giving Twitter the protections of California's strong anti-SLAPP laws -- meaning that if Sony actually sued, it may have to pay Twitter for bringing a frivolous suit designed to shut people up. Basically, Boies is making a lot of noise without much legal basis -- and, in the process, calling tremendous attention to one guy who's been finding a bunch of interesting things in the emails.

We've already discussed how bad Sony's computer security strategy has been -- and now it seems like its legal strategy is equally brain-dead.

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  • identicon
    Michael, 23 Dec 2014 @ 6:17am

    How does this guy continue to get hired? Has he ever won a case?

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Dec 2014 @ 6:59am

      Re:

      Well, in this case, I'd imagine it went something like this:

      Sony Executive: Dammit, how do we get all these bloody webpages to stop posting all these embarrassing documents they stole from us? Can't we sue them or something?

      Sony Lawyers: No we can't. The people posting them aren't the ones that stole them, and they have a bunch of first amendment protections. The sites that host them are shielded from liability by the DMCA. Our hands are pretty much tied.

      Sony Executive: But we have to do something, they're making fools out of us!

      David Boies: Oh, we can totally sue them, but we probably don't need to. Small time sites like this tweeter don't want to waste the effort defending this sort of thing. All we have to do is threaten them and they'll cave. In the unlikely event that they don't, they definitely won't be up for a protracted legal battle.

      Sony Executive: Great! Let's get right on it!

      David Boies: Ka-ching! I mean, right away sir!

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Dec 2014 @ 6:36am

    Lawyers must be the biggest bunch of closet anarchists going. They behave as if 'law' is just a word to be used to try and get their own way, or the result that their client wants.

    reply to this | link to this | view in chronology ]

    • icon
      John Fenderson (profile), 23 Dec 2014 @ 7:02am

      Re:

      Lawyers are the exact opposite of anarchists but thanks to the Law of Eristic Escalation, when you take an extreme position the end effect is usually indistinguishable from the effect of taking the opposite extreme position.

      reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Dec 2014 @ 8:13am

      Re:

      "Law" is a mutable concept, subject to changing mores and interpretations. Often, a lawyer's job is to shape the perception and usage of words to their clients' advantage. In this case, Sony's strategy seems to be twofold: define something called "Stolen Information"; then assert absolute control over its dissemination, including attempts to restrict journalist's access.

      I suppose they have to do something; trying to control leakage will ultimately be easier than having to defend the content of this "Stolen Information".

      reply to this | link to this | view in chronology ]

      • icon
        nasch (profile), 23 Dec 2014 @ 10:51am

        Re: Re:

        I suppose they have to do something; trying to control leakage will ultimately be easier than having to defend the content of this "Stolen Information".

        Since controlling the leakage after it's already occurred is impossible, I'll have to disagree on that.

        reply to this | link to this | view in chronology ]

    • icon
      G Thompson (profile), 23 Dec 2014 @ 5:34pm

      Re:

      Holding an actual law degree (though not practicing) I for one am A proud member of "Anarchists United".


      Let that sink in a bit... I'll wait.. I have time

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 23 Dec 2014 @ 6:13pm

        Re: Re:

        I signed up and was immediately banned for life. They told me I wasn't AU material... and that I needed a shave.

        reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Dec 2014 @ 6:13pm

      Re:

      you give anarchists a bad name

      reply to this | link to this | view in chronology ]

  • identicon
    Bengie, 23 Dec 2014 @ 6:40am

    IP

    I thought the whole point of trade secrets is you forfeit government IP protection because you think you can protect your IP better.

    reply to this | link to this | view in chronology ]

  • identicon
    New Mexico Mark, 23 Dec 2014 @ 6:46am

    Again

    Companies run by lawyers and accountants are destined to fail. I can't put my finger on exactly why, but with lawyers it probably has something to do with the idealism of "things ought to work this way and I honestly believe I can bend reality to fit my ideals". With accountants, the focus always seems to be cutting losses rather than creating profits.

    Business leaders tend to take the more pragmatic approach of just wanting to sell a product and at the end of the day make a profit. Ironically, this actually produces a pretty good balance in other areas. A good business leader can see that IT security may be an overhead cost, but they can also understand that spending in that area can prevent or reduce much steeper costs, both directly and in loss of reputation, when it is ignored. The accountant only sees money spent with no immediate return. Lawyers seem to think they can fix reality later because, you know, if we have enough laws, we can change human nature.

    P.S. Did you mean "reek" (as in stink) instead of "wreak"?

    "The state law claims also seem fairly weak on a variety of levels and just wreak of piling on. "

    reply to this | link to this | view in chronology ]

    • icon
      G Thompson (profile), 23 Dec 2014 @ 5:39pm

      Re: Again

      Which shows you have absolutely no understanding about what people with law degrees (not all of them practice law) actually do, are trained in, and what their skillset allows them an inherent ability to accomplish.

      as an example: Look up "Risk Management", "Strategic Management".. and the word "Proactive" then take a giant leap forward and actually THINK about it all.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Dec 2014 @ 7:20am

    i hope there are replies from the individual and from Twitter's legal representatives. hopefully they will be posted here.
    something that i have to say is that Sony are behaving in exactly the same rash, unthinking and 'i am the boss of everything, so do as i say' way they did over the Geohot hacks over the removal of the 'other O/S from the Playstation! if it hadn't been for the judge who sided with Sony over the 'able to remove' that O/S as they wanted, even after people had paid good money out specifically because it had it on it, fucking idiot, they may have learned something that held them in good stead now. as it is, the knock-on effects from that piss poor decision is doing Sony no favors at all now!!

    reply to this | link to this | view in chronology ]

  • icon
    Jeremy Lyman (profile), 23 Dec 2014 @ 8:04am

    Surprised?

    These execs have been on the sinking entertainment gatekeeper ship for years and their only response has been to point fingers and pretend nothing is wrong.

    Now the Sony bulkhead has broken off the ship and is headed to the bottom of the Mariana Trench. Is it any wonder that their damage control consists of finger pointing and the unreasonable demand that everyone ignore reality?

    reply to this | link to this | view in chronology ]

  • icon
    OldGeezer (profile), 23 Dec 2014 @ 8:15am

    Sony: Let's chase down all the horses after we left the barn door open!

    Sony is just flailing wildly trying to stop all the information about their embarrassing and even illegal behavior. Even if they could force Twitter and a few others to remove posts they are still facing an impossible battle. Are there still people who actually believe that once something newsworthy is on the internet it is not permanent? Apparently a company so clueless that they put all the passwords on a folder called passwords are. It's like the idiots that try to use the "right to be forgotten" and find that little known information about them goes viral.

    reply to this | link to this | view in chronology ]

  • identicon
    Baron von Robber, 23 Dec 2014 @ 8:50am

    I would respond as Popehat would.

    "Snort my taint."

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Dec 2014 @ 9:36am

    How long will it take Sony or the Feds to realize the hack was corporate espionage?

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 23 Dec 2014 @ 10:41am

    Just sayin I went and read it all because of this story. Without it I probably never would have. Streisand enagaged!

    reply to this | link to this | view in chronology ]

  • icon
    antidirt (profile), 23 Dec 2014 @ 5:14pm

    duh!

    reply to this | link to this | view in chronology ]

  • icon
    antidirt (profile), 23 Dec 2014 @ 5:17pm

    duh!

    reply to this | link to this | view in chronology ]

  • icon
    Arioch (profile), 23 Dec 2014 @ 6:08pm

    Sony?

    reply to this | link to this | view in chronology ]

  • icon
    Arioch (profile), 23 Dec 2014 @ 6:19pm

    Sony?

    Lets be fair.
    Sony have a reputation of having very poor IT security. They have been hacked so many times.
    They have also attempted to hack their own customers with disgraceful attempts to put easily discovered rootkits on their retail products.

    What I do not understand is why the American government is making such a massive issue of this, when Sony is basically a Japanese company with an american subsidiary.

    Possibly donations

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 23 Dec 2014 @ 7:32pm

      Re: Sony?

      ... when Sony is basically a Japanese company with an american subsidiary.
      Japan Prepares to Reappoint Abe as Prime Minister”, New York Times (AP), Dec 23, 2014
       . . . Local media said Gen Nakatani was viewed as the likely replacement for [defense minister Akinori] Eto. Nakatani served as defense minister under former Prime Minister Junichiro Koizumi and supports a stronger role for Japan's military, which is constrained by the country's commitment to pacifism under the constitution drafted by the American occupation forces following Japan's defeat in World War II. . . .

      reply to this | link to this | view in chronology ]


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