A New York Times story this morning about poor Fabrice Tourre, the colossal dick who sold fraudulent mortgage securities for Goldman Sachs, is based in part on secret emails between Tourre and his attorneys that the Times obtained from some weird ex-hippie artist who says she got them from some dude who found them in the garbage... hey, wait, what?
Here's how the story - which makes the case that Tourre has been unfairly singled out for selling securities that were designed to fail when literally everyone else was doing it - says the Times obtained draft legal filings written by Tourre's attorneys:
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.
That's some awesome luck. It reminds us of the time the Village Voice's Tony Ortega found a cache of Harvey Weinstein's printed-out emails in a TriBeCa garbage can. But it also raises some questions, as they say. Reuters' Felix Salmon, for instance, is wondering very loudly whether or not Times reporters Louise Story and Gretchen Morgenson essentially hacked into his email:
It goes without saying that Tourre is extremely upset right now, and feels violated by the NYT. He's not wrong to feel that way. 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.
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? The latest email cited in the story is dated October 2010, so we can assume that messages bound for Tourre continued "streaming" into the laptop up until them. If Koan/Cohen 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. Koan/Cohen may be legally or ethically on the hook for continuing to download the emails, but that's not Story or Morgenson's problem.
Trouble is, the story says Koan/Cohen handed the emails over "when she heard Mr Tourre's name in news reports about the S.E.C. case". Who knows what she heard when, but Fabulous Fabrice Tourre first became a notorious Goldman Sachs villain in December 2009, courtesy of a New York Times story by Louise Story and Gretchen Morgenson. And Tourre testified before Congress, generating a firestorm of publicity and press interest, in April 2010. By October 2010, the date of the last surreptitiously obtained email, he was no longer in the headlines. So maybe Koan/Cohen first became aware of who Tourre was some time after October 2010 and just handed everything over.
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 authorisation a facility through which an electronic communication service is provided". The Times' use of the word "streaming" is odd, since in our experience you have to actively instruct a computer to retrieve emails - either through a web interface or through an email application. If Koan/Cohen had the laptop for four years - from 2006 to 2010 - one presumes she had to restart it occasionally. And the emails wouldn't have been "streaming" unless she launched the application that retrieved them or visited the website that contained them. In other words, it's hard to imagine a scenario under which she didn't intentionally access email intended for Tourre.
And if she alerted the Times to that state of affairs while it was still ongoing - "Hey, I'm getting emails for this Goldman Sachs guy" - then Story and Morgenson's reaction is key. Did they say, "Awesome, keep downloading them and forward them to us?" If so, that sounds close to a conspiracy to access email without authorisation.
The weird thing is the Times refuses to say when Story and Morgenson first learned of Koan/Cohen's magical laptop, or when they obtained the emails. Here's spokeswoman Eileen Murphy's statement:
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.
Pushed on the issue of when Koan/Cohen first approached the paper, Murphy replied: "We don't, as a matter of practice, disclose this level of detail about our editorial decision making and newsgathering and I will point out again that we are confident that our decisions in this matter were in keeping with our journalistic standards and the law."
Interestingly, Murphy also strongly suggested that the laptop at issue didn't belong to Tourre: "All but one [emails referenced in the story]came from the Senate report and are public and none came from Mr. Tourre's email system." If it didn't come from Tourre's email system, it's hard to see how it came from his laptop.
As Choire Sicha has noted, Goldman is quite the professional organisation when it comes to information security, and emails don't just "stream" unbidden to Goldman-authorised devices. So it's likely that it was a computer belonging to one of his attorneys - if the laptop's "Sent Items" mailbox was synced via IMAP or Microsoft Exchange, for instance, with Tourre's attorney's email account, then "messages for Mr Tourre" would have continued streaming to it.
A woman answering the phone at Nancy Koan/Cohen's number said she wasn't available, and Tourre's attorney did not return phone calls.
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