Possible Twitter lawsuit would dive into murky blog waters

Twitter may file suit against blogs, other web sites that published hacked information

If Twitter decides to sue Web sites and bloggers that published information pilfered from its systems by hackers, the company could be diving into murky and largely untested legal waters.

Biz Stone, co-founder of the micro-blogging site, confirmed in a blog post yesterday that a hacker gained access to the personal e-mail account of a Twitter employee and with that was able to lift private company documents. At that point, the hacker offered the information to various blogs and online publications.

Bloggers from multiple Web sites followed the Twitter hack story, but TechCrunch, a well-known blog covering the tech industry, went a step further and published a few of the stolen documents.

In his blog post, Stone said that Twitter is weighing its options over how to deal with the hacker and with those sites that published the hacked information.

"We are in touch with our legal counsel about what this theft means for Twitter, the hacker, and anyone who accepts and subsequently shares or publishes these stolen documents," wrote Stone. "We're not sure yet exactly what the implications are for folks who choose to get involved at this point but when we learn more and are able to share more, we will."

Stone did not respond to a request for an interview to answer questions about the incident and the company's legal plans.

In a blog post yesterday, Michael Arrington, founder and co-editor of TechCrunch, said that none of the "highly sensitive Twitter documents" accessed by the hackers would be published on his site. However, he did add that TechCrunch is "going to publish some of the other information that is relevant to Twitter's business, particularly product notes and financial projections."

Arrington also contended that any unethical or illegal activity weighs solely on the person who took the information and then distributed it. "On our end, it's simply news," wrote Arrington.

Scott Christie, a former federal prosecutor who now leads the information technology group at the McCarter & English LLP law firm, said the hacker's legal problems are easy to see. The legal responsibilities of others who published the information are less clear, he added.

"This is all new ground," Christie said. "Whoever took the information is clearly wrong, and Twitter can and should go after them. As for the ones who published it ... it's less clear. It's sort of a quirky little case and it largely depends on how aggressive Twitter wants to be."

Christie said the latter situation treads into First Amendment issues and journalistic privilege laws.

"Just because something has been obtained illegally doesn't prevent downstream use of it by others," said Christie. "If they can claim journalistic privilege ... it gives them a lot of different rights and privileges. [A journalist] doesn't have to give up his sources, for instance. If someone knew it was stolen when they received it and they published it anyway, a fine line is being walked."

And then another question pops up: Are bloggers considered to be journalists under the law? That issue, legal experts say, is still up in the air.

Earlier this month, a New Jersey Superior Court judge ruled that a blogger who posted comments about the pornography industry is not protected by journalistic shield laws and can be sued for defamation, according to a report on New Jersey On-Line LLC's NJ.com Web site.

"Everyone has something to say and a means to say it -- so are they all journalists?" asked Christie. "Is there a difference between full-time, traditional journalists and all these Johnny-come-latelies? It'll be hard to say. How much of a blogger do you have to be to qualify as a journalist? That's a burgeoning gray area that is just starting to be fleshed out in the courts."

Dan Olds, an analyst at Gabriel Consulting Group Inc., said he's quite sure that most tech companies hope that Twitter will go after any sites that published their data, and come away with a precedent setting case. But that could lead Twitter into a long and costly court battle.

Another part of the problem is that right now, Twitter has a pretty clean, nice-guy image and they don't want a lawsuit to tarnish that, Olds noted.

"Twitter needs to protect its image but I'd still recommend that Twitter sue the publishers into oblivion," he added. "Any publishers who have used stolen property to capture more page views deserve it. In my opinion, Twitter financials and market estimates aren't exactly the Pentagon Papers, and their news value does not supersede the illegality and immorality of using stolen data to write the stories."

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Sharon Gaudin

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