That’s a pretty serious accusation. But Felix Salmon questions the New York Times‘ story about the court case against Goldman’s Fabrice Tourre (written by Louise Story and Gretchen Morgenson) for its dubious sourcing.
This is how they got the information: The story was sourced because a New York woman found emails in a laptop discarded in the garbage. Email messages for Tourre continued to stream in, but the woman ignored them until she heard Tourre’s name in the news for the SEC case. Then she gave the data to the Times.
That was the (heavily lawyered) explanation provided. But — even if that is the full truth — is it ethical? Even legal? Writes Salmon:
I understand that the computer was found in a garbage area, and that there’s a long tradition of investigative reporters using information found in the trash. But if Tourre left a key to his apartment in the trash, that wouldn’t give reporters the right to use that key to enter his apartment and snoop around. The laptop was essentially a key to Tourre’s email account — which held highly confidential correspondence between Tourre and his lawyers. An email account, these days, is arguably more private than an apartment, and breaking into a password-protected email account is clearly wrong.
In response, the Times released this statement to Business Insider:
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.
Gawker’s John Cook had this to add:
The Times‘ account of how and when it received the emails is vague—and, one has to presume given the circumstances, deliberately so. For instance: When did the Times come to possess the emails?…
If [the source] simply dumped the emails on Morgenson and Story at some point after that—”here’s a big inbox”—then there’s no real harm done…
Or maybe she contacted the Times before that, while the emails were still “streaming.” If that were the case, it could be a touchy situation for the paper. As attorney Maxwell Kennerly has noted, it’s a crime to “intentionally acces[s] without authorization a facility through which an electronic communication service is provided.”
Columbia Journalism Review also notes that:
The paper should have been much clearer on how it got access to the documents and what it actually got its hands on. It says in a statement to New York that it did nothing illegal and that “certain documents were provided to us by a named source,” which implies that it did not have access to the whole computer…
[But] It’s awfully convenient for Tourre and his legal team that these emails ended up in the New York Times without having to directly leak them to the paper.
And Litigation and Trial has this to add:
Back to the point: did the NYTimes or its source think they had “specific authorization” to read Tourre’s emails just because it found his discarded laptop? I find that unlikely, to say the least.
It seems the NYTimes might have a wee bit of a problem here.
No doubt there is more to come.