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
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
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.