With nabobs still nattering about TechCrunch's decision to publish internal Twitter documents, copyright lawyer Ben Sheffner reminds us that getting people to spill unauthorized info is commonly known as "journalism." Sheffner's post originally appeared on his blog, Copyrights & Campaigns.
I am genuinely baffled by the journalistic ethics debate over TechCrunch's decision to publish Twitter corporate documents that were apparently obtained through "hacking" and then forwarded to the Silicon Valley business blog.
TechCrunch appears to have played no role whatsoever in the alleged hacking. According to TechCrunch, it was simply sent 310 documents, unsolicited. It then decided to print "financial projections, product plans and notes from executive strategy meetings," as well as "the original pitch document for the Twitter TV show that hit the news in May." Why? "[M]ostly because it's awesome." TechCrunch voluntarily refrained from publishing other information contained in the documents, including "floorplans and security passcodes to get into the Twitter offices." According to the NY Times, TechCrunch's founder Michael Arrington (a fellow OMM alum) "is working closely with Twitter as it determines which pieces of information to publish," though "[h]e is protecting the identity of his source."
Here's what I don't get: why the ethical hand-wringing here? Why was TechCrunch's decision to publish some of the hacked documents any different from what mainstream publications like the Times and Wall Street Journal do countless times every day: print information and documents leaked from employees to reporters, without company permission? Every company I've ever heard of prefers to keep its business information confidential. Often, they have formal confidentiality policies, or even require employees (and contractors) to enter into strict nondisclosure agreements. Of course business reporters know this. And yet, without giving it a second thought, they ask employees to violate their duties to their employers, and leak confidential documents and spill the beans on company secrets. And their editors don't wring their hands; they praise their reporters for their scoops.
In some ways, what typical reporters do in soliciting confidential documents is ethically worse than what TechCrunch did. Reporters typically ask sources to give them confidential documents knowing full well that the employee is breaking company policy, and possibly civil or even criminal laws (e.g., conversion or theft of trade secrets). But TechCrunch did no such thing; by its account, the hacked documents just showed up unsolicited in its inbox. And assuming that's accurate, I think TechCrunch faces no significant legal risk from publishing the material. See Bartnicki v. Vopper, 532 U.S. 514 (2001) (radio host not liable under wiretapping statutes for broadcasting illegally intercepted conversations, where he played no role in illegal interception).
The hand-wringers can't have it both ways. Either TechCrunch's decision to print was perfectly legitimate journalism — or what business reporters do every single day is even more unethical. Am I missing some distinction?