Twittergate: Don’t Believe the Hate

Okay, before we get started, here’s the catch-up on Twittergate for those of you who aren’t up on the 24-hour tech news cycle:

  1. A hacker broke into Twitter-owned file stores and copied hundreds of documents
  2. Techcrunch received these hundreds of confidential Twitter documents as did several other individuals.
  3. Michael Arrington, founder of techcrunch, is posting a limited amount of the information he received.
  4. In true blogging style, Arrington has openly discussed the ethical dilemma he is faced with in real-time, something you rarely if ever see from the mainstream press. Arrington is talking about not just what was in those documents, but also being very transparent about how he got those materials

So what happened next? Some serious hating on Arrington ensued which got me to thinking about this entire event.

So here are my main contentions on the matter:

  1. The main action Arrington took that was different than how most other journalists would handle this was that he was transparent about how he got the information.
  2. If you have a serious problem with what Arrington did in this case, then you have a general problem with the institution of news in the United States.
  3. There is a very good argument that what Arrington did in this case was at least as ethical if not more so than how stolen Trade Secrets are normally handled by journalists

And instead of a full treatise attempting to prove those arguments, I figured a little Q and A might actually be more effective. Fire away in the comments section to debate the points!

Skeptic Q: A crime was committed to get Arrington the information. Doesn’t that make Arrington a dealer in stolen goods?

Swoosher A:

  • Yes, Arrington was dealing in stolen goods. But Arrington’s actions have broad 1st amendment protection:
  • Most journalists do this regularly, they are just not so transparent about it. Even this morning’s news about the latest termsheet from Microsoft and Yahoo! discussions is quite possibly the dissemination of material that qualifies as a trade secret. I could come up with 100 examples here. I recommend you scan the headlines of the Business Press on any given day to find a few.
  • The uproar over this in many ways is that people got a very inside, very candid, dirty look at how the sausage is made. It makes people feel uncomfortable to see that–like going to a slaughterhouse– but overall it’s a very good thing for folks to have their heads abruptly removed from the sand. The part that is regrettable is that in Arrington’s candor, he became the object of the abhorrence with the sausage making

Skeptic Q: Isn’t there something different about a leak of Trade Secrets vs. a hacker stealing them?

Swoosher A:

  • It’s the difference between an “inside job” and an “outside job”
  • The hacker committed two crimes (hacking, and theft of Trade Secrets), where as the insider committed one (theft of Trade Secrets).
  • In either case, the journalist (in this case Arrington) is generally protected to publish what comes into his or her inbox.
  • Is it okay that theft happens from insiders, but somehow worse when it happens through outsiders?
  • Bad analogy: If there was a diamond heist committed by insiders at a jewelry store vs. a straight out robbery, should the insiders get a pass? Sure, maybe the outsiders used force to get the gems, which means they also may have committed an additional crime, but a heist is a heist.

Skeptic Q: Just because other journalists do it doesn’t make it right…

Swoosher A:

  • Totally fair Argument
  • The news business is FOR PROFIT. It’s in their interests to publish news that draws an audience and makes them money. It is also highly competitive. If someone else draws your audience tomorrow, you’re out of business.
  • This has caused an environment that sacrifices some notions of ethics to stay in business.
  • My main contention is that though not necessarily right by the strictest moral code, but theft has fueled the news machine for hundreds of years. Theft of trade secrets is common, and sometimes (though not in this case) the journalist is involved in even “conspiring” with the thief… i.e. “I’m going to need more to run the story… do you have a document that says XYZ?”
  • The problem is a completely free press though it has many benefits to society, can ultimately encourage crimes to be committed. We see such crimes regularly committed for the purpose of disseminating to the media all of the time.
  • I’m certainly open to how to change the system. Where to draw the line is a very difficult task

Skeptic Q: I can understand if there was some misconduct or moral imperative being looked into, but in this case there was none. Shouldn’t that effect the ethical conclusions about this case?

Swoosher A

:

  • The moral imperative question is easy. If there was serious moral import in this case, there would be no question at all. If Twitter was committing fraud, or stealing diamonds from banks to fund their business, I don’t think there would be a single complaint about Techcrunch’s actions.
  • The real question is that in cases *without* moral imperative, should journalists continue trading in stolen information that has little to none moral import?
    • News business is competitive
    • To stay in business they must break stories
    • Everybody trades in stolen property in order to continue breaking relevant stories in order to stay in business.
    • Is the journalist at fault for wanting to keep his job which requires dealing in stolen property?

Skeptic Q: I still feel that Arrington was more wrong than the average journalist

Swoosher A:

  • Arrington brought an extreme amount of openness to the party that was unnerving for people who do not understand how the news system works, or disturbing for people who are not used to that kind of openness. He showed us how the sausage is made, and it definitely ain’t pretty, and makes a lot of us feel uncomfortable.
  • Arrington was blogging real-time as his Inbox was filling up. The emotion of a hungry hard core news person comes through in that first post. Not everybody is comfortable with that. And that’s where Arrington’s lightning rod style comes in. Even with the facts on his side, his style isn’t elegant and can certainly rub some people the wrong way. But it doesn’t change the facts, and it doesn’t make him morally wrong as many detractors like to claim.

Skeptic Q: How the heck was Arrington in this case as ethical or *more* ethical in his handling of Trade Secrets in this case than the average one

Swoosher A

:

  • He was fully transparent about how he got the information. This is atypical in the business. In fact, if Arrington had not been this transparent, simply stating that an anonymous source had provided the document, there would have been ZERO uproar about this matter. Most news organizations like to stay out of the story itself, and generally like to keep the spotlight off of how they get their materials. The typical news outlet would have debated this in the newsroom but left the debate there.. AND they certainly would not take it into the public.
  • It can be argued that journalists dealing with their sources of trade secrets are halfway conspiring with the leaker to get those documents. This activity is shady at best, and criminal at worst (without 1st amendment protection), but is rarely prosecuted or enforced. Arrington simply opened his email box in this particular case.

8 responses to “Twittergate: Don’t Believe the Hate

  1. You’re dead on. As usual. It sucks to be hacked, but Arrington isn’t doing anything wrong.

  2. Hey Travis,

    Great post. I can tell this episode got you fired up.

    Got a few cents to throw in here. I agree with your basic point, which as I see it is this: Stop whining, this is America, and in America journalists use all legal means to obtain information to provide the public with the crucial knowledge they need — and want — to conduct their lives as citizens.

    So somebody hacked into some Twitter employee’s computer. Big deal. Corporate espionage happens on a daily basis, and hopefully this will be a teachable moment for Twitter — not to mention the unlucky employee — about computer security.

    As far as Arrington is concerned, there are really only two questions.

    1. Did Mike Arrington commit a crime to obtain the information?

    2. Did Mike Arrington pay money — or pledge favors — in exchange for the information?

    I have three points to make. First, it does not appear at present that Arrington and Techcrunch face legal jeopardy. Second: you speak of transparency — I think Techcrunch readers deserve a fuller account of how the site gathered the information — which appears to have been obtained through a criminal act. Finally — and most importantly — this is a tempest in a teapot: a bit of nonsense that most people could care less about.

    Should Twitter be upset? Yes. Is this embarrassing for Twitter? Yes? Does any of this really matter in the long term for Twitter’s business prospects — or Techcrunch’s ultimate viability? No.

    The main macro point is that this story is just a great scoop — pure and simple. No more, no less.

    Of the two questions, the first is a legal matter. Thankfully, in the United States, there is long body of legal jurisprudence holding that publishing information illegally obtained by others is not — in, and of itself — a crime. The definitive Supreme Court ruling on this — as far as I’m concerned — is New York Times vs. the United States.

    http://en.wikipedia.org/wiki/New_York_Times_Co._v._United_States

    In the United States, journalists enjoy broad protection under the First Amendment, as you mentioned. If reporters were prohibited, enjoined or otherwise barred — by law or force — from printing information that they had not themselves personally obtained, we would be living in a very different country.

    And that’s the point. The press must — and I emphasize MUST — be allowed to print information regardless of its source, within the law.

    That said, I want to echo Bill Keller’s recent observation that there is no such thing as absolute press freedom in this country. Nor should there be. Journalists make decisions all the time for all kinds of reasons — including being compelled by the state — to publish or not publish information. For example, if I knowingly libeled, slandered or falsely accused you of a crime in public, I could be subject to legal penalty.

    But beyond that, in this country, you can write pretty much whatever you want. And that’s all to the good.

    So, does what Mike Arrington did by publishing Twitter’s internal documents appear to violate the law? No. Or course not, and any such case would be laughed out of court.

    We agree that a crime appears to have been committed — by someone, call him Hacker A. The F.B.I. is currently looking into the alleged crime. If federal prosecutors find evidence and can establish a case that Mike Arrington was somehow an accomplice to this alleged crime, then Arrington could face legal jeopardy. For example, did Arrington induce the hacker to commit the alleged crime — or was Arrington otherwise involved in the commission of the allegedly illegal activities? If federal prosecutors can show that Mike Arrington was involved with the corporate espionage, he could face a criminal penalty.

    As the case moves forward, Arrington — and TechCrunch — could be subject to a federal subpeona, as part of the investigation.

    Which really isn’t that big a deal. Journalists are subpoenaed frequently, and thankfully some 48 states — including California — have some form of shield law that protects reporters from having to identify or otherwise discuss their sources. Now, are “bloggers” entitled to the same protections as professional journalists? That is an open question being hotly debated throughout the states — a question calling out for a firm Supreme Court ruling.

    Does Arrington consider himself a “blogger” or a journalist? In the short run, it doesn’t matter, because the law is vague enough that both are protected. For now.

    On to question two, the ethical question. Does Arrington comport with traditional journalism ethical standards? No, and he’ll be the first one to tell you that. As has been debated by The New York Times, Arrington, Jarvis, and others, Mike does not feel compelled to follow the old-school — but still dearly held by some of us — standards of fact verification, sourcing, story attribution, and conflict of interest policy.

    But no matter. This is what we’ve come to expect from Techcrunch, and why we love it, I might add. Mike and the Techcrunch crew proudly carry their freak flag into this intellectual battle as the vanguard of the new blogging elite.

    What’s troubling is the possibility that Arrington or Techcrunch might have paid or otherwise compensated their source for the information. Maybe not in cash, perhaps, but I’d like to learn more about what — if any — transaction was involved in the exchange.

    I want to be clear. I know Mike, and I do not believe that Mike paid for the hacked Twitter files. I give him the benefit of the doubt. But I think his audience deserves a fuller explanation of just how, when, and from whom — I realize he us entitled to keep his source anonymous, but I’d like to learn more about that source and their interest in this — he received such a large cache of apparently illegally obtained corporate documents.

    At the end of the day, this is just so much more tech-reporter navel-gazing Techmeme fodder. Bottom line is that Arrington scooped the press and published some stale internal documents from the hottest young company around – Twitter. Because it appears those documents were illegally obtained, Techcrunch could face some kind of subpoena. And if it turns out that Techcrunch aided or abetted that alleged crime, Arrington or others could face legal sanction. Luckily, state press shield laws exist, which protect bloggers and journalists – regardless of what they call themselves – from having to reveal or otherwise discuss their sources.

    All that said, I believe that Mike should do his readers a service and offer them more transparency about how the documents were obtained – considering there is a criminal case now underway on this matter. Our free press is a right, as well as a privilege. And there’s a difference between revealing how the sausage is made – and respecting readers’ intelligence with responsible sourcing.

    It’s up to him. I’m hoping he’ll do the right thing.

    All best,
    Sam

  3. Sam, interesting to hear your desire for M.A. to give us more info, but I think it should be mentioned that he has already gone WAY above the ethical standards in source transparency.

    Certainly any kind of misconduct is possible, but there’s ZERO reasonable justification to suspect that Techcrunch paid for the hacker to deliver the goods and then reported that they got stuff from that hacker (i.e. what are you smoking?). And given the unliklihood of your scenario, shouldn’t you be asking this of any journalist of any article that comes out with an anonymous source? And that is just simply not practical.

    Remember, the FBI is on the hacker’s trail. If the hacker was paid by anybody, that will come out if the hacker is caught. If the hacker is not caught, you’re out of luck hoping your imagined hacker-payer is going to offer that information up freely.

  4. could @arrington transparency be the problem? in no way do i criticize him for being so open however the fact is that because he revealed that the documents were stolen he then forced himself to publicly be judged for his his ethics.

    it is almost like when you walk out of a store and realize that the cashier didnt charge you for a certain item in your bag. do you return to the store and pay for it? or, do you continue on because you werent in the wrong?

    @arrington publicly made that decision. he could have emailed @ev or whomever and returned the stolen property. instead he did what was better for his company and for his readers and published some of the documents. being a tech news junky i probably shouldnt complain because no one else is as willing to reveal as much as @arrington did about how he obtained the documents. therefore leaving me with the question of how everyone else gathers their stories, is this an abnormal way of gathering inside information? or is @arrington just too honest?

    aside from a legal battle there may be other repercussions to this. does anyone in the tech world trust @arrington or @techcrunch after this? yes they are on top of their game with “breaking” tech news but then again so it TMZ with their coverage of their subject matter. is @techcrunch the new geek TMZ? is @techcrunch going to start hiring photographers to sit outside the houses of geek celebrities like @veronica, @jasoncalacanis, or @kevinrose or better yet outside the apple campus, the google campus, and the facebook campus? haha !!

    finally i am forced to ask myself how @arrington would feel/handle if the shoe was on the other foot. if both sensitive and non sensitive documents about the rumored crunch pad were hacked and sat in the inbox of other new sources and the possibility of some of them being published was at risk would @arington agree that from a journalistic stand point that it wouldnt be wrong to publish the ones that the OTHER journalist felt werent harmful to the company. the other journalists, now that they have that sensitive data can now help advise @arington and @techcrunch like he claims to be doing to twitter.

    • iteaguy, let me deal with a few points in your email:

      I do think that @arrington’s transparency has caused what I call the lightening rod effect… and yes, if he wasn’t so transparent, he would have no uproar over the entire event… it would be a nonevent.

      my understanding is that there was a fair amount of disclosure and interaction with twitter.

      it is clear other journalists are not as transparent about their methods/sourcing, my guess is that hacking situations are rare, but I believe the semi-collusion/semi-conspiring that goes on between journalists and their inside sources can often be legally and ethically worse than what arrington did here, even if those other sourcing methods are SOP.

      t

  5. apologies for all the typos in the prior post. the iphone keyboard just isnt the same as a normal sized qwerty. cheers.

  6. Again, interesting discussion, Travis. I realize you think that MA and TC have been very transparent on this issue.

    What is clear is that MA and TC THEMSELVES don’t feel they have been transparent ENOUGH about this.

    Why else would they publish this?

    http://www.techcrunch.com/2009/07/19/the-anatomy-of-the-twitter-attack/

    I’m glad that TC is offering more details about this matter — though by no means do I believe that the full story is out. Perhaps more details will come out in the days ahead.

    It will be interesting to see what the DOJ comes up with. For my money, this French hacker is toast.

    Sam

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