What TechCrunch’s Publication of Twitter Memos Means for Journalists

News has circulated this week about TechCrunch publishing confidential Twitter documents that it said it received from a person identified as “Hacker Croll.” The hacker obtained what are purported to be meeting notes and memos that may give clues about the future of the social networking site.

TechCrunch said “300 confidential Twitter documents and screenshots” landed in their inbox. The site said it was only willing to post a handful of the documents.

For journalists, this raises a new twist on an old issue: what to do with sensitive documents that sources give us. The twist is that in the past, if mainstream journalists did not publish or broadcast the documents, they would in all probability remain hidden. Not anymore.

I worry that because we now have new competitive pressures from nontraditional sources such as bloggers, Twitterers, etc., we will be tempted to lower our standards and publish under the notion that confidential documents “will get out there anyway.”

The Twitter memos were undoubtedly confidential. TechCrunch explained
:

“The documents include employment agreements, calendars of the founders, new employee interview schedules, phone logs and bills, alarm settings, a financial forecast, a pitch for a Twitter TV show, confidentiality agreements with companies such as AOL, Dell, Ericsson, and Nokia, a list of employee dietary restrictions, credit card numbers, Paypal and Gmail screen shots, and much more.

“… There are a number of documents showing the names of people who interviewed at Twitter for various senior level positions so publishing their names would obviously be distressing for them. Most of these people remain in their current jobs. Some documents show floorplans and security passcodes to get into the Twitter offices.”

Twitter said the hacker appeared to have pried into a Twitter employee’s e-mail account:

“From the personal account, we believe the hacker was able to gain information which allowed access to this employee’s Google Apps account which contained Docs, Calendars, and other Google Apps Twitter relies on for sharing notes, spreadsheets, ideas, financial details and more within the company. Since then, we have performed a security audit and reminded everyone of the importance of personal security guidelines.”

Related legal implications


The social networking site said it is unsure what the legal implications of the “theft,” or even the publication of the stolen materials are, but added:

“We have a culture of sharing and communication within Twitter and these stolen documents represent a fraction of what we produce on a regular basis. Obviously, these docs are not polished or ready for prime time and they’re certainly not revealing some big, secret plan for taking over the world. As Peter Kafka put it, this is “akin to having your underwear drawer rifled: Embarrassing, but no one’s really going to be surprised about what’s in there.” That is an apt analogy.

“Nevertheless, as they were never meant for public communication, publishing these documents publicly could jeopardize relationships with Twitter’s ongoing and potential partners. We’re doing our best to reach out to these folks and talk over any questions and concerns.”

The Citizen Media Law Project reported on the California-centric legal issues regarding this situation.

In general, trade secrets have a special protection in U.S. law. A trade secret can be a practice, a design, formula, pattern, plan, process or collection of information that a business has assembled to build an economic advantage over competitors.

The legal site NOLO provided this background
:

“Unlike other forms of intellectual property such as patents, copyrights and trademarks, trade secrecy is basically a do-it-yourself form of protection. You don’t register with the government to secure your trade secret; you simply keep the information confidential. Trade secret protection lasts for as long as the secret is kept confidential. Once a trade secret is made available to the public, trade secret protection ends.”

States commonly exempt trade secrets from open record laws, so even if a company has dealings with a government body, the records that reveal a company’s trade secrets may remain secret.

NOLO explained what a business has to do to win a lawsuit over the release of a trade secret:

“To prevail in a trade secret infringement suit, a trade secret owner must show (1) that the information alleged to be confidential provides a competitive advantage and (2) the information really is maintained in secrecy. In addition, the trade secret owner must show that the information was either improperly acquired by the defendant (if the defendant is accused of making commercial use of the secret) or improperly disclosed by the defendant (if the defendant is accused of leaking the information).”

Journalistic questions surrounding the publication of sensitive documents

Along with legal issues, there are ethical concerns that members of the public often raise when confidential documents are published. Shortly after TechCrunch published the first document, readers published hundreds of comments and Tweets, mostly critical of the site’s decision.

TechCrunch explained why it published the documents, saying:

“We publish confidential information almost every day on TechCrunch. This is stuff that is also ‘stolen,’ usually leaked by an employee or someone else close to the company, and the company is very much opposed to its publication. In the past we’ve received comments that this is unethical. And it certainly was unethical, or at least illegal or tortious, for the person who gave us the information and violated confidentiality and/or nondisclosure agreements. But on our end, it’s simply news.

“If you disagree with that, OK. 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 Northcliffe, a newspaper magnate, supposedly said. I agree wholeheartedly.

“That doesn’t mean we are entitled to do anything we like in order to get to that information. But if it lands in our inbox, we consider it fair game. And if we have reason to believe it will be widely published regardless of what we do, the decision isn’t a hard one. We throw out the information that is sensitive or could hurt an individual, and publish what we think is newsworthy.”

Such explanations are important, but don’t necessarily justify the publication of something.

So, how should journalists think through this issue of when to publish sensitive documents? I offer some guidelines and invite you to add to/modify them:

  • What is the journalistic purpose of publishing this information? Why is this information important and not merely interesting? 
  • What does the public need to know, and when does the public need to know it?
  • Is this a matter of overwhelming public importance that outweighs a private company’s right to privacy?
  • How do you know the information is true?
  • How did the leaker obtain the information? Did that person obtain the information legally?
  • What are the consequences of publishing this material? Who would be harmed, and who could profit from the release?
  • What are the motivations of the person who leaked the information?
  • What promises did you make to obtain the information? Are you protecting the identification of an individual who may have committed a crime obtaining and releasing the information?
  • Did you trade any favors or compensation for the information?

Please share your thoughts here.

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