Monday, August 10, 2009, 8/10/2009 09:56:00 AM

Why Is There a Debate Over Publishing Stolen Twitter Documents and Data?

By Todd

It's been a relatively slow week in the trade secret world - so we thought we'd blog about the ethical/legal implications of a news organization publishing data or documents that their source stole. As you can see from the link to the New York Times story, a hacker stole a bunch of data and documents from "Twitter." (Disclosure: the authors of this blog do not currently use Twitter but have been asked to consider it).

Then, the news source TechCrunch and its founder Michael Arrington had to consider whether to publish the stolen data or not.

"There’s some really interesting stuff here that I think is newsworthy — revenue projections, draft financials, costs, detailed strategy documents that talk about the Facebook threat and when and how they might sell the company,” he said.

“That is immensely interesting from a news perspective, and that’s where the debate internally here is going on — what’s appropriate to post.”

When TechCrunch told its readers that it would publish some of the material, the blog received hundreds of comments, many from readers who thought TechCrunch should keep the material private.

But Mr. Arrington pointed out in a subsequent post that much of what his blog and many other publications put out is confidential material.

“If you disagree with that, O.K.,” he wrote. “But then you also have to disagree with the entire history of the news industry. ‘News is what somebody somewhere wants to suppress; all the rest is advertising,’ is something Lord Nordcliffe, a newspaper magnate, supposedly said. I agree wholeheartedly.”

Well, we're not TechCrunch's attorneys - but the definition of misappropriation utilized by the Uniform Trade Secrets Act is relatively simple to understand. Assuming at least some of the information that TechCrunch received from the hacker constituted "trade secrets" of Twitter then if TechCrunch acquired the data or documents "improperly" or from a person "under an obligation not to disclose or use it" then TECHCRUNCH has technically misappropriated the secrets and could be liable to Twitter for misappropriation. We understand and agree that the law is all over the place on whether a court could issue an injunction against TechCrunch prohibiting it from publishing the stolen documents or data on "prior restraint doctrine" grounds, but the prior restraint doctrine does not prohibit a court from finding a news organization liable for misappropriation after the fact.

While TechCrunch appears to consider all information that a company like Twitter would prefer to keep private to be news, the fact that this "news" did not concern a public matter such as a production facility pumping out toxins into the air or water and thus looks more like a purely private matter does not bode well for any liability defense on First Amendment grounds. That's just our two cents . . . .


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