Why Sony is way out on a limb with legal threats against Twitter

The ripple effects of the Sony Pictures Entertainment hack continue to spread, and one of the latest — and also arguably the least plausible — is Sony’s attempt to threaten Twitter with legal action if it doesn’t remove tweets that contain content from the company’s hacked emails. Sony may have hired superstar attorney David Boies, who led the Justice Department’s antitrust case against Microsoft in the 1990s, but the consensus in the legal community is that the company’s blustering is all sound and fury, signifying little.

The full extent of Sony’s claims can be read in the letter that Boies sent the company, but in a nutshell the movie studio is asking Twitter to suspend the account of anyone who posts information from the hacked emails, and it specifically mentions the account @bikinirobotarmy — which belongs to rock singer Val Broeksmit, who has a band of the same name — which has been publishing screenshots of some of the emails (with addresses redacted). The letter states:

[blockquote person=”” attribution=””]”The Stolen Information includes, but is not limited to, documents and information protected under U.S. and foreign legal doctrines protecting attorney-client privileged communications, attorney work product, and related privileges and protections, as well as private financial and other confidential information and communications of SPE’s current and former personnel and others, confidential personnel data, intellectual property, trade secrets and other business secrets and related communications, and other confidential information.”[/blockquote]

A laundry list

The letter says that Sony “requests your co-operation,” but it’s pretty clear that what the company is trying to do is threaten Twitter with just about everything it can think of, regardless of whether the argument has a leg to stand on. The paragraph above is a kind of laundry list of potential legal claims, some of which could be argued but would likely lose, and some of which probably have no basis whatsoever. In other words, a mish-mash of half-truths and Hail Mary passes.

[tweet 547197535493046272 hide_thread=’true’]

Among other things, Boies argues that the publication of emails violates Twitter’s terms of service and conduct rules, which prohibit publishing copyrighted materials without permission, as well as publishing “private and confidential information” without consent, something it has suspended users for in the past (and in fact @bikinirobotarmy was suspended after posting an email with Sony email addresses in it, but the account was later restored after the tweet was deleted). Boies also says the tweets breach a number of laws, including the Computer Fraud & Abuse Act, California’s Stolen Property Law and the Uniform Trade Secrets Act.

Section 230 of the CDA

As a number of people have pointed out, including the Electronic Frontier Foundation’s global policy analyst, Section 230 of the Communications Decency Act protects Twitter — and plenty of other sites and services — from many of these kinds of actions, because it states that a provider of an electronic service cannot be held liable for statements made by users of that service, in the same way that AT&T can’t be held liable for what people say when they are talking on the telephone. This clause protects everyone from Twitter to newspapers who provide comment sections for their readers.

So Twitter is totally out of the woods then, right? Not quite. One thing Section 230 doesn’t cover is claims that involve intellectual property and copyright — that’s what the Digital Millennium Copyright Act is for. So Section 230 covers you if you say something bad about someone, but not if you post copyright infringing material. Also, it doesn’t protect you if you post “trade secrets,” or information that a corporation believes is vital to its business, and it doesn’t provide any legal cover from federal criminal statutes either.

Trade secrets and IP

So Sony could make the argument that some of the content that is being posted by @bikinirobotarmy and others would qualify as intellectual property and/or is part of a “trade secret.” But is this really plausible? Probably not. So far, the emails have mostly consisted of commentary from Sony executives about various movie stars or the potential plots of potential future movies. Sony would have to argue that leaking news of a sequel to Pineapple Express is a “trade secret,” which is a bit of a stretch.

[tweet 547421806546923520 hide_thread=’true’]

Also, as Mike Masnick at Techdirt notes, most of the claims that Sony is making might apply to whoever actually hacked Sony’s emails, but it’s another thing to suggest that they would apply to someone who published them, since that would bring First Amendment protections into play. If Twitter could face legal sanctions for allowing someone to post that content, then presumably the New York Times and other media outlets could also be charged. While they have received threatening letters, the likelihood of an actual lawsuit seems tiny.

What’s interesting is that all of the same defenses that apply to Twitter for hosting or distributing this information would theoretically also cover Reddit for doing the same, but the site has been taking down posts and blocking accounts after also being threatened by Sony. It’s possible that the company just doesn’t want to risk an expensive legal battle — which of course is exactly the outcome that Sony probably wants.

On that point, Masnick also notes that Sony’s strategy carries substantial risk for the company if it does decide to pursue a lawsuit: it could be accused of what’s called a SLAPP offence — which is an abbreviation of the term “strategic lawsuit against public participation.” Laws against that kind of conduct are designed to penalize companies or agencies that threaten massive lawsuits in order to shut down free speech, and can carry significant costs if Sony were found guilty.

Twitter confirmed to me that it has received the letter, and has forwarded it to one user, but it has taken no further action — and it’s worth noting that the @bikinirobotarmy account remains online.