The New York Times published an A1 story today on Fabrice Tourre, the young Goldman employee targeted by the Securities Exchange Commission for mortgage trading-related misbehavior. The piece is long, rigorously sourced and, according to blogger Felix Salmon, pushes the boundaries of journalistic ethics. In a reaction posted not long after the story by Pulitzer-winner Gretchen Morgenson and Louise Story went live late last night, Salmon asks bluntly, "Did the NYT Hack Fabrice Tourre's email?" His post points to two grafs from the Times story detailing how some confidential emails found their way into reporters' hands:
These legal replies, which are not public, were provided to The New York Times by Nancy Cohen, an artist and filmmaker in New York also known as Nancy Koan, who says she found the materials in a laptop she had been given by a friend in 2006.
The friend told her he had happened upon the laptop discarded in a garbage area in a downtown apartment building. E-mail messages for Mr. Tourre continued streaming into the device, but Ms. Cohen said she had ignored them until she heard Mr. Tourre’s name in news reports about the S.E.C. case. She then provided the material to The Times. Mr. Tourre’s lawyer did not respond to an inquiry for comment.
Salmon argues rather forcefully that in all likelihood, the paper of record almost certainly stooped to squalid methods in order to recover emails from Tourre's found-in-the-trash laptop. As Cohen's friend passed off the laptop in 2006, it's undeniable that Morgenson and Story would have had access to Tourre's private emails as recently at October 10, the date of one legal reply cited in the article. Whether the reporters hacked the account in order to recover the fresh emails, recovered the emails using a stored password or simply accessed the messages on a hard drive provided by Cohen is irrelevant, according to Salmon. "The question is whether the NYT was wrong to snoop around his emails while fishing for a story--even if doing so meant hacking into his private account," he posited.
Danielle Rhoades Ha, The New York Times' director of communications, responded to Salmon's accusations in an email to The Atlantic Wire. She wrote:
As we disclosed in our story, certain documents were provided to us by a named source. The Times did not "hack" any email accounts or ask anyone to do so. We are confident that our receipt and use of those documents was in keeping with our journalistic standards and complied with the law.
There are really two ways of thinking about Salmon's accusations. The first is the rational approach that Salmon himself suggested this morning in a sort of self-congratulatory tweet: "I suspect that the reason journalists aren't glomming onto the NYT email hacking is 'cos they'd all do the same thing." Which could be translated as, journalists let journalists get away with dodgy sourcing when there's a moral higher ground achieved in doing so. In this case, digging into the private correspondence of a Wall Street villain already on trial for scamming the nation out of billions of dollars warrants little contempt--especially since The Times was able to separate itself from the dumpster-diving source of the information by a couple of degrees. After all, doesn't America deserve more scoops that can help prosecute Goldman Sachs employees?
The second mode of thinking is a bit more rigorous. The post itself references the News of the World phone-hacking scandal last year. The Times themselves reported on the British tabloid's ethically compromising practice of hacking into royal aides' voicemail for scoops on the Prince William and Prince Harry. Safely insulated by the Atlantic Ocean, the paper quotes a member of Parliament pushing back on an investigation into the News of the World's ethics because "to start exposing widespread tawdry practices in that newsroom was a heavy stone that they didn’t want to try to lift." On this side of the pond, however, The New York Times's own public editor Arthur Brisbane argues for more transparency around the paper's ethical standards in an April column. Brisbane quotes journalism expert Bob Steele on the downside of this idea, "The risk is that when you put your ethics standards and practices on the cyber-table, if you will, the heightened accessibility and the growing tendency of the public to throw brickbats will lead to a lot of headaches.”
With a little bit of digging, we found The Times's official stance on the ethics of digging into private documents. From a 2004 handbook:
Staff members must obey the law in the pursuit of news. They may not break into buildings, homes, apartments or offices. They may not purloin data, documents or other property, including such electronic property as databases and e-mail or voice mail messages. They may not tap telephones, invade computer files or otherwise eavesdrop electronically on news sources. In short, they may not commit illegal acts of any sort.
Later this morning, Salmon directed us to law blogger Max Kennerly who decided this morning to investigate how what media law handled news outlets accessing private emails. And Kennerly's findings do not bode well for The Times. Created in 1986 "to address the growing problem of unauthorized persons deliberately gaining access to, and sometimes tampering with, electronic or wire communications that are not intended to be available to the public," the Stored Communications Act "establishes liability for anyone who 'intentionally accesses without authorization a facility through which an electronic communication service is provided.'" (Emphasis Kennerly's.) Unless the paper, Cohen or the unnamed source who found Tourre's laptop in the trash had "authorized permission" to access the emails, Kennerly argues, The New York Times may have not only comprised its own journalistic standards with today's front page story, it may have broken the law.
It's worth pointing out that the Stored Communication Act, also known as the Electronic Communication Privacy Act, is famously out-of-date. After all, the 1986 legislation refers to e-mail as "computer mail." Senate Judiciary Committee chairman Patrick Leahy has proposed a sweeping update to the SCA that would limit the government's ability to access to email data. Currently, the government does not need a warrant to search citizens' email--Leahy intends to change that. Of course, given the tenor of Leahy's rhetoric about the new legislation, an update to the SCA would actually increase privacy, making it more difficult for unauthorized access to private emails.