2) Boehner v. McDermott: The media outlet distributed material it may have known was illegally obtained but it did not advise or participate in its acquisition. There was a crime committed by the person who actually obtained the materials illegally. However, no media liability was found in this case.

3) Peavy v. WFAA-TV Inc.: The media outlet was approached by an informant claiming that he had information about a local news issue. The media outlet refused to use the information without further documentation, encouraged the informant to obtain that, and advised him on the process (which amounted to an illegal wiretapping). The media outlet was found to have advised and encouraged the illegal acquisition of materials, which it then took possession of and published. The court characterized this as “undisputed participation.” The informant and the media outlet were found to be liable for the illegal acquisition.

The third criterion of “public concern” or “newsworthiness” is given broad range in interpretation. One California Supreme Court case, Shulman v. Group W Productions, Inc., determined that “a publication is newsworthy if some reasonable members of the community could entertain a legitimate interest in it.” That court granted “considerable deference to reporters and editors, avoiding the likelihood of unconstitutional interference with the freedom of the press to report truthfully on matters of legitimate public interest.”

The above cases all involved violations of the Federal Wiretap Statute , which is similar to the Stored Communications Act and Computer Fraud and Abuse Act, which (together with mirroring state statutes) would likely apply to the hacked e-mails. The University of East Anglia would have to prove that the hackers had violated one of the two laws (a fairly certain bet) and that the university had suffered damage as a result for liability to reach the hackers and, possibly, whoever published them.

Hacked E-mails and the Law

The climate change e-mails are intimately related to high-level climate science and politics, both of which are generally considered to be of the highest news value. The timing of the hack, in relation to the current international climate summit in Copenhagen, elevates the news value even further. Thus, the third criterion of the Barnticki test, requiring high news value, would be satisfied in this case.

As for the first two criteria regarding a news outlet’s relation to the underlying crime, it is “very unlikely” that any news organization that published the e-mails would face legal liability with regard to how they were obtained, says Edward Klaris, Vice President of Editorial Assets & Rights at Condé Nast Publications and an expert in publishing law who lectures at Columbia Law School.

The first leak seems to have occurred in early October, when the BBC’s Paul Hudson received a “chain of emails” that later turned out to be part of the larger group of hacked e-mails that later appeared on the Internet. Mr. Hudson neither posted the e-mails at that time nor revealed the source that provided them to him. (He did, however, post a link to them once they became public.)

Then, on November 17, a hacker accessed the RealClimate.org Web site, a forum used by climate scientists to explain their work. A zip file containing all 4,000 documents were uploaded from a computer in Turkey. Within minutes the Web site’s co-founder, Gavin Schmidt, noticed the intrusion and shut down the site. However, a link to the file on RealClimate had been posted in the comment section on ClimateAudit.org. Schmidt reported that four users had downloaded the file prior to shutdown.

On November 19, a link to a zip file on a Russian server was posted on The Air Vent, a site frequented by skeptics of climate change. The site’s moderator, Jeff Id, expressed concern about possible legal issues surrounding the link, but later that day posted this:

I’ve been advised that I don’t need to hide the link. Since this is already being downloaded everywhere…

Diana Dellamere is a former CJR staff writer.