Why Didn’t Amy Pascal Just Pick Up The Phone? Ctd

by Michelle Dean

A reader compares the Sony hacking to this year’s sexting hacks:

I was a Sony Pictures employee up until two months ago. I worked as a television producer on the Sony lot for the previous two years. On a daily basis, I passed by Amy Pascal and Michael Lynton and the others whose private emails have now been leaked (contrary to Michelle Dean’s disdain that they’re just “big fancy business people,” they’re actually very cool, approachable people), and I have been warned that my private information has very likely been leaked as well – as have any present and former Sony Pictures employees going as far back as 1995. (!)

Let’s first remember what this hack is about: Private documents and emails were illegally stolen and leaked to the public, with more leaks threatened, in order to blackmail Sony out of releasing a film – they have specifically demanded that Sony not release “The Interview.” Put another way, foreign hackers are blackmailing Americans out of exercising their First Amendment rights. And now the media outlets that continue to print the salacious details revealed in these stolen documents are complicit in that blackmail scheme, having given the leaked information the damaging attention that the hackers wanted. The media crossed the line when the reporting shifted from the story of the hack itself and the criminal investigation, to printing every salacious email they could find.

This is not a Snowden leak where it can be argued that this is information about our government that is vital to American citizens. As Sorkin pointed out, these hacks reveal no laws broken by Sony. So this is nothing more than sleazy tabloid journalism using documents stolen by criminals. It is the complete lack of ethics of The Fappening all over again. It doesn’t matter how we got the information, there’s page-views to get! Is this the norm now?

And the worst part is, in the few stories that I’ve read on this, I have seen nothing that would shock anyone in the entertainment industry: Film executives and producers talk bluntly about scripts and actors and personalities because that is the business that they are in. They have to be both passionate and direct, or they aren’t doing their jobs.

Let’s flip the script, so to speak: All of your personal information, emails, your employees’ medical records, payrolls, etc. are leaked by foreign hackers, who threaten to release more if you publish a controversial story. The FBI is investigating. How would you feel about all of your fellow bloggers printing every salacious, taken-out-of-context detail of every email you’ve sent for the past 20 years, making it front page news every day for three straight weeks, and counting? Would you really blame YOURSELF?

To answer the reader’s last question first: I would, at least a tiny bit. But then I’m the self-lacerating sort. And I also tend to see things in questions of degrees.

Of course I would be unhappy to see journalists publish people’s unredacted medical records and social security numbers, which I would agree are analogous to the sext leaks of early September. And I completely sympathize with the panic employees caught up in this mess might feel about that. As far as I know, no one has yet printed things like that but it’s not much comfort.

My point was more limited than this reader imagines. I was simply pointing out that business executives do not have a clear-cut expectation of complete privacy in emails that related to business negotiations and transactions. That goes for the “cool, approachable” executives, too. Business people are regularly called onto the carpet by their lawyers and shareholders to account for their actions in managing the company. It’s just part of the deal along with the rich severance payout.

Is that an abridgement of their First Amendment rights? I’m not so sure. I think it’s just about being a responsible executive.

These emails may not show “illegal” activity per se, in that nothing in them hints at criminality. But they do have the potential to incur big costs for the company in later disputes and litigation. And shareholders do, by the way, have some interest in knowing how the company’s management behaves. The public interest here may not be as clear-cut as in the Snowden matter but these aren’t simply “private” matters. And as an experienced big fancy business person (I think she can survive a tongue-in-cheek remark), I’m sure Pascal knows that intimately.

Update from a reader:

Michelle Dean was right to feel sorry for the in-house counsel at Sony who has tried to prevent everyone there from sending sensitive e-mails – clearly, the message hasn’t gotten through there based on that note from a former Sony employee. News flash to everyone in the US: your company, not you, owns your e-mails! When you hit “delete” on an e-mail, it means “saved forever on a server and/or hard drive somewhere”. Anyone in this day and age who thinks they have any expectation of privacy in any e-mail exchange is sorely mistaken.

When you communicate by e-mail, it feels like a conversation, but it’s like etching something into stone. I tell everyone at my company that for any e-mail you write, imagine seeing it blown up on a giant screen in courtroom somewhere, and you having to explain what you meant by it. I’ve sat through that exact scenario hundreds of times, and have seen offhand e-mails written in the middle of the night create hundreds of millions of dollars in liability for a company, and countless deposition and trial time being spent talking about one or two sentence e-mails. I’ve also seen sexually explicit e-mails (and photos/videos) that would make anyone blush, and these have been viewed and discussed in open court.

I also don’t understand the reference to “First Amendment Rights” by the former Sony employee. Where is the US government involved in stopping anyone at Sony from saying anything? The authorities should go after whoever hacked into the system, and convict them of a crime if they can be caught, but the people who wrote these e-mails assumed the risk when they decided to write an e-mail instead of picking up the phone (or walking down the hall). With everything that’s happened the last few years, including Snapchat hacks etc., it’s amazing to me that people are still surprised when their e-mails get exposed for the world to see.

Forward thinking companies are automatically deleting all e-mails after a short period of time (i.e., 90 days), both to save storage money and to avoid situations like this. Microsoft was at the forefront of this, and has been extremely pleased with the results. Sony (and all of the other studios) may want to consider a similar policy, which would have avoided most of the most embarrassing leaks.

Those “Notable Books Lists”? They’re Useless

by Michelle Dean

Those end of the year book lists are lumbering around the internet right now, coming soon to a friend’s Facebook wall near you. NPR’s list of 2014 Great Reads numbers 250; the New York Times Book Review offers the slightly more conservative 100 Notable Books of 2014. The hugeness of these lists betrays something: their uselessness. My eyes always cross at lists that number above, say, 25. It certainly doesn’t narrow down the Christmas shopping list much.

Plus, these lists get to be disquieting documents of the Way We Publish Now. I would love to believe that we live in a publishing environment where we were producing at least a hundred well-edited, well-considered books a year. Unfortunately, as Ursula K. Le Guin recently put it to the shocked horror of most at the National Book Awards ceremony, writers instead work in an industry controlled by “commodity profiteers [who] sell us like deodorant, and tell us what to publish, what to write.” It’s not an amazing environment for the production of literature. Mostly, publishers are throwing all sorts of stuff at the wall to see what sticks. I find it overwhelming and kind of sad to receive as many bad galleys as I do, often bought by a publisher for a great deal of money, but landing on my doorstep with the undignified plop of thawed turkey.

Listing so many books as “notable,” given that context, smacks of desperation.

It’s certainly always been the case that publishers churn out tons of books a year that flame out and die in the remainder piles. But even the largest pinch of salt, 2014 has seemed particularly bad. Precisely three newly published books have managed to take up permanent residence in my head this year: Marlon James’ A Brief History of Seven Killings, Jenny Offill’s Department of Speculation, and Hermione Lee’s biography of Penelope Fitzgerald. And while other people might compose their lists differently, or count in their own findings five, ten, or even fifteen notable books, listing a hundred or more just feels… careless. It feels like the work of marketers, not of people who care about identifying good books.

If you are looking for new book recommendations, you’ll find yourself much better off consulting The Millions’ Year in Reading columns. There recommendations do not have to meet some insane artificial round number. No one is constrained by what happens to be on the publishers’ lists. In fact if anything the books they recommend tend to skew old. Michael Schaub, for example, wants you to read some Galway Kinnell. Jayne Anne Phillips has been re-reading Stephen Crane. Tana French got around to Strangers on a Train.

If someone asked me, for example, I would have told them that Words in Air: The Complete Correspondence Between Elizabeth Bishop and Robert Lowell, is the book that changed my life this year. I had to consult it for some book research and then never stopped quoting it. I’ve become quite annoying on the subject and am desperate for someone else to talk about it with. Isn’t that what you want to hear, anyway, from someone recommending a book to you, rather than two tossed-off lines of plot summary in a sea of 99 other books?

SantaCon vs The Millions March

by Michelle Dean

I can wax rather sentimental when it comes to protests. While I didn’t get out to the Millions March on Saturday for personal reasons, I’d meant to. I like marches. Even the best ones have a slight air of chaos, and the dominating atmosphere is usually angry despair. But there’s something about just the act of walking together that can restore your faith in the usefulness of civic engagement. And given the news of the last few weeks – which to me has felt like a relentless chant of police brutality, rape and state-sponsored torture, rinsed and repeated endlessly – I’ve been feeling the need to have my faith restored in the usefulness of civic engagement. I suspect I’m not alone.

So my heart soared when I saw those pictures of clogged streets come up in my Twitter feed. Here were people doing what they could to challenge injustice. I felt a faint flickering of hope.

And then along came Deadspin last night to post the above video of a bunch of drunken louts in Santa suits heckling the protesters.

These men are participants in a weird New York tradition known as “SantaCon.” After nearly ten years of living here I can’t figure out if SantaCon has a point. The idea, to the extent that any kind of “idea” animates SantaCon, seems to simply be that it is enjoyable to get drunk on cheap alcohol while wearing even cheaper velour. So I know it mostly as that time of year when a truly inexplicable number of Americans descend on Manhattan to get drunk in bad Irish bars and yell loudly outside them. (Granted, you people also do that on the Fourth of July.) The people who live here the rest of the year generally stay in and/or pretend it isn’t happening. The mentions I hear of it usually have the sound of gallows humor, i.e. “Ugh. SantaCon.”

But the very fact that the people of SantaCon expect to be able to be such a nuisance without reprisal seems so telling.

You can see, for example, that these men are too drunk to be particularly effective hecklers. Mostly the protesters ignore them and march on. But the tableau sticks with you. Although outnumbered in the frame these idiots in Santa hats feel representative of some larger apathy of the American public. The fact that they happen to be white guys of the “bro” varietal, as Deadspin calls them, makes the image even more depressing. They’re more interested in “having fun” than in worrying about the growing authoritarianism of this country or about the militarization of the police.

And they seem unconcerned, you can’t help but notice, that their public drunkenness and belligerence might get them arrested. I bet they were right. I bet they didn’t get arrested. I bet they spent their Sunday in a peaceful and uninterrupted hangover. The distance between their expectations, and those of black men, is exactly what these protests have been about. But I still bet they don’t know that, and probably never will.

Why Didn’t Amy Pascal Just Pick Up The Phone?

by Michelle Dean

Aaron Sorkin, burnishing his credentials as He Who Blows Hard While Knowing Little, has an op-ed in the New York Times today complaining about the journalistic feeding-frenzy on the hacked Sony emails. Naturally, his rhetoric spirals into the atmosphere. For example:

As a screenwriter in Hollywood who’s only two generations removed from probably being blacklisted, I’m not crazy about Americans calling other Americans un-American, so let’s just say that every news outlet that did the bidding of the Guardians of Peace is morally treasonous and spectacularly dishonorable.

You know, I haven’t looked at HUAC transcripts recently but I wouldn’t be surprised if accusations of “treason” and the like came up just as often as accusations of “un-Americanness.” Sorkin might want to cool it. Discomfort with the fact that these documents are stolen and worry about what this heralds for the protection of personal employee information is perfectly legitimate. Talking about journalism in terms that belong in some Lifetime remake of Braveheart, much less so.

But Sorkin’s not alone. Handwringing about the “ethics” of the Sony hack is at high tide right now. It puzzles me, mostly because I didn’t start out as a journalist, I started out as a lawyer. And as a lawyer, my sympathy lies with the poor in-house counsel shmuck who has undoubtedly been saying to Amy Pascal for years, “Please just pick up the phone next time.”

See, at the heart of Sorkin’s complaint is the idea that the studio’s business records are subject to an inviolable right of privacy. But even Sony’s lawyers know that’s never the case.

Crap emails, to borrow an old Jezebel phrase, have long gotten businesspeople in actual trouble. When I was a very bored first-and-second-year corporate litigator, a good portion of my job was devoted to trawling through other people’s inboxes. I worked on securities litigation and bankruptcy cases, so mostly it was investment bankers’ emails I’d end up with. But the principle extends everywhere. I’d always be looking for information about some dry financial transaction, but you’d be surprised what kind of asides would get tangled up with those business emails. Pictures, insults, “jokes.” And more than once, those “jokes” ended up bearing on the dispute at hand, getting cited in legal briefs, relied on by judges in their rulings.

Email, in other words, has long been something lawyers told rich businesspeople to be careful with. Even jokes that seem harmless at the time can come back to haunt you.

Take, for example, the colorful emails that flew back and forth about the production of the Jobs biopic. If anyone involved in that mess had decided to sue someone else, on virtually any theory, all of those emails would have been pulled into the case. Discovery standards in American courts are very wide; you can pull in virtually anything that’s relevant. Scott Rudin’s off-the-cuff assessment of Angelina Jolie’s talents could very well have been the lynchpin of someone’s argument about a contract. Even if the whole thing never went to trial, the size and nature of any settlement might well have hinged on his “candid” emails. And all that would happen whether or not Rudin liked it; in the context of a lawsuit his consent would be as irrelevant to the court as it is to the hackers.

Have all the qualms about hackers that you like, of course. But it’s odd to pretend that these big fancy business people had no idea of the risk. They chose to ignore it in favor of the expediency of negotiating over email, fine. But these men doth protest too much, I’m saying.

Cat Lady Conquers Political Blog

by Michelle Dean

Screen Shot 2014-12-15 at 2.00.42 AMI am both flattered and apprehensive to be playing the role of one half of Andrew Sullivan for you this week. (The other half belongs to Will Wilkinson.) I’m going to be presumptuous and say I suspect I’m here to represent the left-hand portion of Andrew’s psyche. I started out, years ago, writing mostly for The Awl. More recently I’ve been writing for Gawker and The Guardian. Though I’ve had my fair share of mud thrown at me online, few have ever accused me of anything like libertarianism. Or even centrism. Blame it on my being born and raised in the heathen socialist wilds of Canada, if you like.

Introductions are awkward so let’s keep this short: I do a lot of culture writing, some of it criticism, some of it journalism. But given the choice, I’d write mostly about the dead. I like history. I also like books, though my preference skews to old, weird books. I know way too much about the history of American magazines. And I really like old headlines.

When forced to consider more contemporary matters, I usually natter on about feminism and women’s issues, about crime and criminal justice, and about the law more generally. In a previous life I was a lawyer of the worst kind, meaning a corporate lawyer at a white-shoe law firm. I’ve felt the need, since, to pay off some karmic debts.

At the moment I’m in the process of finishing a book about women critics and intellectuals from Dorothy Parker to Janet Malcolm. I call it Sharp: The Women Who Made An Art of Having an Opinion. It’ll be published sometime in 2016.

I also have what most of the internet seems to agree is a very attractive cat. I promise not to write about her too much this week.