No Gray Area: It’s Definitely Not OK to Publish Emails From the Sony Hack

A look at the media's strategy of relying on criminals to do their reporting for them.

offthemedia-1At first, I thought the media response to the celebrity hacking scandal was sanctimonious. Now I realize it was rank hypocrisy. Just shameless, awful hypocrisy from a group hardly better than the criminals they enable.

Because after every outlet, from Perez Hilton to Jezebel, called the hack, leak and publishing of nude photos of celebrities, including Kate Upton and Jennifer Lawrence, a crime, none of them seem to have any problem publishing the spoils of the Sony hack, particularly the many private conversations of its co-chairman Amy Pascal.

As Marc Andreessen put it on Twitter last week: “Hackers steal a company’s email files. No bad acts by company revealed. Press prints emails. Journalism, or federal crime?”

That’s exactly right. It’s the question we should be asking here.

How on earth do all these outlets—including The New York Times no less—justify printing or covering the contents of private emails obtained through clearly criminal acts? And not only that, but many in the media consider it real journalism and, in one case, criticize Sony for “choosing to stay silent” for months before telling anyone they’d been a victim?

“There’s really no other way to explain the horrifying lack of empathy so many of them show, time and time again, when women of all levels of fame are treated like they exist to be bullied and mocked.”

Well put, Jezebel. It makes it extra ironic that your boss, Nick Denton actually wrote a memo to Gawker’s staff in which he lauded the publishing of the Sony emails and said “that’s how good our editorial can be every day.” Really? That’s how good? Not: That’s how low we’re willing to stoop. This is the same guy who spoke last year about wanting to have a company people were proud to work at. These are the same people who criticized the supposed bullying tactics of #GamerGate, even though what they do is just as bad.

When News of The World in the U.K. hacked the private phone conversations of celebrities, politicians and everyday people it was supposedly “a journalistic travesty” (Huff Post) and “flagrant criminal activity” (Salon). Would the same outlets have published leaked audio from this despicable act?

It’s a rather self-serving distinction to suggest that when individuals have their information leaked it amounts to an invasion of privacy but that when it happens to a company it is simply a matter of security or secrecy. Just because you think the sole mission of corporations is to try to screw over consumers does not empower the mainstream media (also made up of massive multi-national corporations, by the way), or give it the right to screw other corporations over.

In 2008, when I worked at American Apparel, a former IT employee leaked my email to numerous media outlets. Information from benign, personal emails between the CFO and myself were printed in outlets like Gawker, CNBC, The New York Post and others, and spun by reporters to create what looked like a bankruptcy crisis, damaging the company’s reputation and stock price. It was the night of Christmas Eve and I was just 21 years old. It did more than just ruin some time with family. I was convinced in that moment that my career was going to end.

For what? So Hamilton Nolan could get 30,000 extra pageviews? Behind every online bully is an impotent fool, who justifies their dubious decisions behind the veil of “free speech.”

A police investigation later caught the culprit responsible and connected it to a series of lawsuits that had been filed against the company. The cyberteam caught the leaker by pretending to be a reporter who wanted access to the emails and tracked their IP. In other words, the criminal saw the media as allies in their attempt to exert undue leverage—and the media saw no issue establishing an alliance with someone like this. (In fact, those reporters still have jobs.)

I cannot express the violation of privacy I felt. I remember calling American Apparel founder Dov Charney that night to apologize. He said to me: “Look, we all say things in email that we wouldn’t want other people to see or hear. Particularly your generation—you use email instead of the phone. I’m not going to fault you for anything that’s in there.” I’m very grateful for that understanding—my entire life might have turned out differently without it. If I am being perfectly honest, if I had been in his position I might not have extended the same generosity.

For all the people who said it wasn’t O.K. to judge Jennifer Lawrence for taking naked selfies, I don’t think you have any right to judge Amy Pascal or Scott Rudin. What they said might be offensive but here’s the thing—you have absolutely no right to know that they said it.

I won’t get into the contents too much, but I think that their argument about Kevin Hart and whether the $3 million they paid him entitles them to social media support is not something Kevin Hart ought to respond to. What matters is what they ultimately did—did they treat him well or not? Same goes for the remarks about Obama—the reality is that with their money and time these two individuals supported his campaign. Some inside jokes? They stayed inside … that is, until the media, conspiring with a group of criminals, took it outside.

Readers, writers, the subjects of these stories have no right to outrage. These are stolen goods.

Mr. Rudin is absolutely right when he says: “This is not about salacious emails being batted around by Gawker and Defamer. It’s about a criminal act, and the people behind it should be treated as nothing more nor less than criminals.”

As far as I’m concerned, he shouldn’t need to apologize for his remarks—because we weren’t a party to them.

It is not 2003 where even the half-baked excuse that “they shouldn’t have put this stuff in writing” might fly. Email is now the dominant communication medium. These are casual, private conversations between colleagues and friends. They are entitled to some modicum of privacy. Just as it would be obscene if someone had drilled into the wall and surreptitiously recorded meetings and leaked it, the same goes for the emails.

In fact, when a pervert spied on sports reporter Erin Andrews in her hotel room, the media agreed generally not to traffic in the footage. Imagine, a group of professionals got together and drew a line about what they will and won’t do. How human. (Or was it just the fact that she was one of their own?)

But I think the statement ESPN sent out at the time to the few publications that ran photos and videos of her personal violation adds perspective to the current situation:

“These pictures were obviously taken through a peephole or otherwise in a fashion constituting a trespass/assault on the rights of the woman involved.

Your continued posting of these pictures are highly likely to render you an accessory after the fact to a criminal act. We hereby demand that you (i) immediately remove these pictures from your site and (ii) disclose to us the source of the pictures. We intend to hold you fully responsible for further display of material that so obviously violates the law.”

How is this different? Spying on a woman while she’s naked is different only in degree to spying on a different powerful woman when she communicates with her employees, clients and partners. Especially when the people who did the hacking don’t even have the courage to reveal their identities.

I wonder how much the media’s reliance on these criminal groups for these scoops has to do with the fact that its reporters are utterly incapable of producing legitimate stories on their own. I wonder how much time these reporters even spent verifying the actual emails they did run.

When I wrote Trust Me, I’m Lying, I suggested that publishers over a certain size be required to post a bond to compensate the victims of their recklessness. It’s an old idea, which originates from the British Empire, when owners of printing presses were required to set aside money for the inevitable damage they would inflict with their newspapers.

Today, we clearly live in a world where there is zero circumspection when it comes to hitting the publishing button. In Mr. Denton’s memo (the same one where he lauds the Sony leak) he brags that Gawker has grown to $60 million in annual revenue. It’s clear to me that we’ve reached a point where a reserve fund is necessary once again.

If there is to be no consideration pre-publication, then there must be consequences after the fact.

The law of disruption states that technological advancements run in advance of our cultural attitudes, practices and laws. Only in retrospect can we see the holes that need to be patched and create new guidelines—explicit and implicit—to create a society that is decent and functioning.

To me, this means that readers must do their part to limit the market for these stories. After all, the real reason that outlets generally didn’t run the celebrity leaks was only that the violation was so repugnant that they were reluctant to be associated with it. And finally, I think it’s high time we create some explicit legal measures to deal with these hypocrites and criminals.

The media I mean.

Ryan Holiday is the editor at large of Betabeat and the author of Trust Me I’m Lying: Confessions of a Media Manipulator.

No Gray Area: It’s Definitely Not OK to Publish Emails From the Sony Hack