The Sony Hack Emails Are Now Available On WikiLeaks — But Should You Look?

WikiLeaks this week published a searchable archive of 30,287 documents and 173,132 emails from Sony Pictures Entertainment. The files are the ill-gotten gains of the hackers who infiltrated Sony’s computer system late last year, possibly in an attempt by North Korea to prevent the studio from releasing The Interview. (The Seth Rogen/James Franco comedy portrayed North Korean leader Kim Jong-un as a doughy, lonely Daddy’s boy with an obsession with American pop culture and a nasty case of paranoia. And nothing upsets a doughy, lonely Daddy’s boy with an obsession with American pop culture and a nasty case of paranoia quite like a U.S. movie portraying him that way.) Though some journalists dug through the leaked files last fall, the documents were an unwieldy, unsearchable mess until Julian Assange and the folks at WikiLeaks came along.

Sony, through its counsel David Boies, tried to halt the spread of the messages and documents months ago, back when the files were not easily accessible. David Boies shot out letters to newspapers, magazines, and websites that might republish “the Stolen Information.” He warned:

We have reason to believe that you may possess, or may directly or indirectly be given, illegally obtained documents or other information stolen from SPE (the “Stolen Information”), pursuant to the perpetrators’ scheme. The Stolen Information includes, but is not limited to, documents and information protected under U.S. and foreign legal doctrines protecting attorney-client privileged information, 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. We are writing to ensure that you are aware that SPE does not consent to your possession, review, copying, dissemination, plubication, uploading, downloading, or making any use of the Stolen Information, and to request your cooperation in destroying the Stolen Information.

Boies then instructed publications to destroy all copies and confirm with Sony that they’ve done so.

Sony’s protests did not deter plenty of press coverage in December. Neither did they keep WikiLeaks from publishing the complete archive this week. WikiLeaks founder Julian Assange insists, “This archive shows the inner workings of an influential multinational corporation. It is newsworthy and at the centre of a geo-political conflict. It belongs in the public domain. WikiLeaks will ensure it stays there.”

In December, Eugene Volokh and others analyzed Sony’s legal claim against press outlets. He examined a couple of relevant precedents that appear to insulate publishers of illegally leaked information, so long as the information is a matter of public concern. Volokh concluded that Sony was unlikely to prevail “at least as to most of the information that media outlets would want to publish.”

Whether Professor Volokh is correct might depend on the media at issue. He is likely right about what media outlets would want to publish, if those outlets are hoary establishments like the Washington Post. Julian Assange also is right that investigative journalists will rake through the Sony archives in order to expose any corporate or governmental wrongdoing they might find, if those journalists share the mission of, say, the now-incarcerated Barrett Brown. Those are high-minded uses of the Sony Hack archives.

But what about the less-noble uses? Where is the line between muckraking journalism and tawdry gossip? More importantly, where is the line between matters of public concern and invasions of privacy?

The legal term of art “a matter of public concern” suggests exposing corruption or reporting on Assange’s “geo-political conflict,” but what the actual public is often concerned about is a bit baser. What actual media outlets would want to publish is rather humble. Are we talking about the same public for whom The Interview was intended?

I confess that I poked around the Sony archives on WikiLeaks. I saw Seth Rogen’s Gmail address. I saw the email Matt Damon sent to Harvard, on behalf of his buddy’s son. I saw the email from Amazon.com confirming Amy Pascal’s customer review of Elizabeth Warren’s book. Growing bored, I entered absurd search terms like “ham sandwich,” lighting upon an email from Amy Pascal to herself called “Fwd: A ham sandwich on crusty baguette at Cafe Charbon on Rue Oberkampf in Paris.” With a link to a lovely ham sandwich.

Then I quickly recalled that I don’t even like sifting through my own emails. So, the thrill of paging through archived inboxes of Sony execs fizzled like a bad James Franco film.

Nevertheless, there they are. Thousands of documents, including some containing sensitive corporate information such as communication between Sony executives and the company’s legal counsel. And, yes, some mundane personal notes to self about pretty sandwiches. These archives are available to the noble reader and the ignoble reader alike, to the fearless exposé author and the gossip rag and the the just plain curious. The righteousness (and legal propriety) of the WikiLeaks archives must account for all of these realities.

Maybe the question to ask about the Sony archives on WikiLeaks is not simply, “Are these documents related to matters of public concern?” Rather, the analysis might also need to ask, “Which public? Whose concern?”

Earlier: Sony’s Choice: Is Obama Engaged In Victim Shaming?

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Tamara Tabo is a summa cum laude graduate of the Thurgood Marshall School of Law at Texas Southern University, where she served as Editor-in-Chief of the school’s law review. After graduation, she clerked on the U.S. Court of Appeals for the Fifth Circuit. She currently heads the Center for Legal Pedagogy at Texas Southern University, an institute applying cognitive science to improvements in legal education. You can reach her at [email protected].