The Next Phase In The Sony Hack – Lawyering Up

UPDATE: Brian Krebs, the security blogger that has broken a lot of breach stories was one of the journalists that received a letter from David Boies firm.  Today he writes about it and other than the comment about hell freezing over first, he suggests, for the most part, Sony does not have much of a leg to stand on.  Here is a link to his post.

USA Today is reporting that media outlets received warnings or threats from Sony attorney David Boies telling them to destroy any leaked documents that they have, that they will be held liable for damages and that

leaked e-mails, documents and other files amount to “stolen information” and that Sony “does not consent to your possession, review, copying, dissemination, publication, uploading, downloading, or making any use of the Stolen Information.”

From Sony’s standpoint, this makes perfect sense in that this attack is a P.R. disaster for them and if they can scare the media into stopping reporting on the details, it will sooner fade into the dust.

But, as an example of how that can backfire, those exact letters have now been published.  Did Sony expect those letters to remain private?  Do they care?  Not clear.

The GOP released some more content over the weekend and some of the sites to which it was posted have already taken the new content down.  But not all of them.

Personally, I do not think the tactic will work.  First of all, a lot of media just reports what other media says.  That is protected speech and I do not think the courts will allow Sony to kill that.

Secondly, it is news even if Sony doesn’t like it.  It might cause some outlets to tone down what they say, but only time will tell.

Third, it may force the GOP to “up the ante”.  Since it is not clear what they have taken, if Sony is heavy handed, it could turn into a full out nuclear war.  For example, i saw a report that the hackers have a script from the breach.  What if they have 5 or 10 or 20.  What if they publish all the scripts that they have.  What if they post their content on eastern European or Russian sites.

One thing that Sony and Mr. Boies should consider – and I suspect that they are – is that they have to follow the rules of US law.  The hackers do not.  That gives the hackers a decided edge.

Last thought – After all the dust settles, there will likely be lawsuits – possibly by some folks with really deep pockets.  And, there will be government investigations and possible fines.  Does it make sense for Sony to attempt to shut the secondary leaks (the media) down?  Absolutely.  Will it work?  Only time will tell.

Mitch

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