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