Jul 172009
 July 17, 2009  Posted by  Breaches, Featured News, Misc, Online

There’s an interesting debate afoot about TechCrunch‘s decision to publish selected documents it received from someone who hacked into the email accounts of Twitter CEO Evan Williams and other Twitter employees. There’s already been some good coverage of the journalism ethics side of the debate, but I wanted to weigh in with some detail on what U.S. law has to say about the situation. Is it legal for TechCrunch to publish hacked documents?  As with most questions worth asking a lawyer, it depends.  It depends largely on whether the content of any particular published document is of legitimate concern to the public.

….  TechCrunch faces three possible legal claims:

First, publishing confidential company documents may be trade secret misappropriation under California law (both Twitter and TechCrunch are based in California), assuming the published documents qualify as trade secrets — that is, information that derives economic value from not being generally known to the public and that is subject to reasonable efforts to maintain its secrecy.

Second, publishing sensitive or embarrassing personal information obtained by the hacker could create liability for invasion of privacy for the publication of private facts. If there’s anything in those documents more sensitive than employee meal preferences — say, social security numbers or health-related information — TechCrunch would want to avoid publishing it.  Certainly nothing Mr. Arrington has published so far poses any risk in this regard.

Third, receiving the hacked emails might violate criminal law against receipt of stolen property. Section 496 of the California Penal Code makes it a crime to “receive[] any property that has been stolen or that has been obtained in any manner constituting theft or extortion, knowing the property to be so stolen or obtained.” Documents can be “property” under statute, but there is some question whether “mere information,” rather than the paper it is printed on, can qualify (admittedly, this could be viewed as a pretty outdated distinction).  See People v. Dolbeer, 29 Cal.Rptr. 573, 574-75 (Cal. Ct. App. 1963).

This all sounds pretty intimidating, but these sources of liability are subject to First Amendment limitations.

Read more on Citizen Media Law Project.  I’m sure that there will be other legal blogs discussing this issue, too, so feel free to send me any interesting links or analyses to post.

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