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Does Sony's privacy beat free speech?

By Paul Callan
updated 10:35 PM EST, Tue December 23, 2014
Sony Pictures announce the controversial comedy "The Interview," a film depicting the assassination of North Korea's leader, will have a limited release on Christmas Day. The studio previously announced it would shelve plans to release the film after it became the victim of a cyber attack thought to have originated in North Korea. Click to see how the saga unfolded. Sony Pictures announce the controversial comedy "The Interview," a film depicting the assassination of North Korea's leader, will have a limited release on Christmas Day. The studio previously announced it would shelve plans to release the film after it became the victim of a cyber attack thought to have originated in North Korea. Click to see how the saga unfolded.
How the Sony hack unfolded
Sony Hack Timeline
How the Sony hack unfolded
How the Sony hack unfolded
  • Sony lawyer David Boies asks Twitter to block tweets of stolen company email
  • Paul Callan questions a key court ruling permitting illegally obtained tapes to be broadcast
  • Callan: Privacy may be a greater value than free speech, given nature of hacked Sony material

Editor's note: Paul Callan, a CNN legal analyst, is a former New York homicide prosecutor and a senior partner at Callan, Koster, Brady, Brennan & Nagler LLP, a New York law firm that litigates criminal and civil cases. Read Callan at Follow him on Twitter: @PaulCallan. The opinions expressed in this commentary are solely those of the author.

(CNN) -- Sony's high profile lawyer David Boies is demanding Twitter take action to block tweets that draw upon the material hackers took from the corporation's computer servers. He wants the accounts of those who post the stolen emails to be suspended.

Earlier, Boies wrote to news organizations admonishing them that they should not publish stories based on the company's stolen secrets.

Gossip-hungry media consumers have been enjoying a feast of salacious celebrity fare from the hacked computers of Sony Entertainment. The U.S. government says North Korea is responsible for the hacking, which apparently was prompted by a Sony movie, "The Interview." Korean leader Kim Jong Un, a man who loves movies but bans virtually all contact between computer, videos and his own starving citizens, is apparently unamused at the film, which makes a joke of his imaginary assassination.

Paul Callan
Paul Callan

In the aftermath of a clearly criminal invasion of Sony's computer system and the cybertheft of thousands upon thousands of documents, emails and related data, the press immediately started publishing the stolen goods. The media then self-righteously asserted that the First Amendment protects its right to publish even stolen material if it relates to "matters of public concern."

This wording emanates from the only Supreme Court case somewhat "on point" as we lawyers like to say. The case is Bartnicki v. Vopper (2001). But is it really on point?

The court's ruling in the Bartnicki case affirmed the right of a Pennsylvania radio show host to play the contents of an illegally recorded cellular telephone conversation over the airwaves. The private conversation between a union president and his union's negotiator related to collective bargaining between a teachers' union and a local municipality.

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This private conversation would later be blessed by the SCOTUS majority of Justices John Paul Stevens, Sandra Day O'Connor, Anthony Kennedy, David Souter, Ruth Bader Ginsburg and Stephen Breyer as a "matter of public concern" fully protected by the First Amendment despite the criminality and invasion of privacy clearly associated with the way the recording was obtained.

A strong and lengthy dissent, however, was filed by Chief Justice William Rehnquist, who was joined by Justices Antonin Scalia and Clarence Thomas.

Rehnquist, a conservative appointed to the court by Richard Nixon and later elevated to the chief justice position by Ronald Reagan, was quite prescient about future privacy issues for a man who was born 60 years before email came into widespread use.

The words from his dissenting opinion may provide the basis for a re-evaluation of the Bartnicki decision and a needed reassertion of privacy rights in the United States. The Bartnicki rationale is being used to reward the actions of the Korean dictator, assuming his government has masterminded the hack.

As Rehnquist observed, the downside of our reliance on electronic communication is that "We are placed in the uncomfortable position of not knowing who might have access to our personal and business emails, our medical and financial records, or our cordless and cellular telephone conversations.

Rehnquist objected to the court majority's ruling that federal and state laws against intercepting electronic communications violated the First Amendment. "The court's decision diminishes, rather than enhances, the purposes of the First Amendment: chilling the speech of the millions of Americans who rely upon electronic technology to communicate each day. ..."

Surely, he wrote, "the interest in individual privacy, ... at its narrowest must embrace the right to be free from surreptitious eavesdropping on, and involuntary broadcast of, our cellular telephone conversations."

In the Sony case, the invasion of the corporation's privacy revealed such minutiae as a movie producer's disparaging judgment of Angelina Jolie ("a minimally talented spoiled brat"), suggestions that Sony engages in wage discrimination against not only its female employees but also its female movie stars, and tasteless jokes from executives about whether the President liked black-themed movies.

Is this really information protected by the First Amendment? Should those who profit from the disclosure of this cybertrash remain exempt from prosecution either criminal or civil? Are these items that the Supreme Court believes are "matters of public concern?"

The law and the U.S. Supreme Court have been outrun by technology's rapid advance and we need a more carefully calculated balance between privacy, property rights and the First Amendment. The amendment as worded was intended to protect political speech, not the dissemination of stolen email and salacious gossip from corporations. Knowing possession of stolen property is almost always a crime and trying to dress it up as a form of "free speech" places the privacy rights of all American citizens in danger.

Much of life has moved into the shadow of the computer, tablet and mobile phone's blue light. These devices are increasingly the targets of information theft by sophisticated cybercriminals. Surely the courts must recognize some privacy rights that are not automatically trumped by a bogus assertion of the First Amendment's "public concern" protection.

In David Boies, Sony hired one of America's most famous and successful lawyers to advance the suggestion that those who reveal Sony's stolen emails and computer data may face lawsuits for damages.

Not even the First Amendment's wide protective net will permit publication of copyrighted material and such things as personal Social Security numbers or intimate personal facts about noncelebrity figures who are included in the stolen Sony database.

U.S. copyright law and the theory of "invasion of privacy" will assure substantial damages to parties legitimately aggrieved. And don't underestimate Boies. He handed out some of the highest bonuses in the legal profession this year, with one associate getting more than $300,000. If she was the attorney who landed Sony as a client, the bonus was obviously well deserved. She will also have a busy year in court if the leakage of hacked material continues.

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