Constant's pations

If it's more than 30 minutes old, it's not news. It's a blog.

Friday, October 06, 2006

Stephen Jones -- You Might Be A PR Expert

Ref: Jordan Edmund

Ref: This release from Jones substantially asserts the opposite -- that the information is factual, not incorrect, and that the lawyers continues to fail to deny his clients relationship with the disclosures.

Ref: Counsel appears to not be clear on certain matters that it reasonably should have deterined before sending the demand letter.

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It worked! You successfully attracted attention of Hollywood!

Warning: Nothing in this letter should be construed to be a statement of fact, conclusion, or legal opinion. We do not represent the person you wrote this letter to.

Further, there is no assertion that you or your client have necessarily been complicit with war crimes; or have engaged in any unprofessional conduct which necessarily warrants disbarment, a malpractice claim, or a cross claim for harassment.

[Maybe I'll spell check this in a year or too. I can't decide. Call ABC, they're the one's who released the info, about your client.]

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Stephen Jones
114 E. Broadway, Suite 1100
P.O. Box 472
Enid, Oklahoma 73702
(580) 242-5500
(580) 242-4556 (fax)

CC: Rod Nixon


1. Thank you for your letter. By commenting in writing, you and your client may be lawfully subpoenaed. As appears the case, the investigation is not simply a matter of individual identity, but whether particular individuals do or do not have access to war crimes related information.

2. As you may have read, the German prosecutor is reviewing the unfolding information. If you or your client have any information which may be of assistance to the German prosecutor that would be of assistance. Thank you for publicly identifying yourself. Here are some things your client, other alleged pages, and other American Bar Association-connected counsel may wish to consider:

___ Encourage client to discuss issues with other pages; encourage them to review legal matters with counsel, and discuss whether former-current pages may be in receipt of probative evidence of interest to the German war crimes prosecutor.

___ Encourage client to speak out about information he may have heard related to alleged war crimes committed by individual Members of Congress, and other discussions the pages may have been aware related to Member of Congress failure to prevent war crimes, or decisions not to review issues of war crimes.

___ Encourage former pages to consider the alleged leadership problems within the House – the failure to investigate – is a generalized pattern of interest to a war crimes prosecutor. Adverse inferences can be made, and prosecutors and war crimes tribunals may legally adjudicate non-cooperating Members of Congress similarly engaged in like alleged malfeasance across multiple issues. Alleged malfeasance when proven on one issue can also be a course of conduct which may or may not be related to a larger pattern of conduct related to alleged failure to prevent war crimes

3. Based on your representations in your letter, it appears your client has requested your assistance because the ABC disclosure was correct; and the primary motivation behind your letter appears to be to have the information removed. Similarly, the real motivation behind your client’s desire to have the information removed appears related to the concern that the information is correct and has been disclosed.

4. Further, your latter fails to emphatically deny that your client is the person in the photo; and you have also failed to emphatically deny that your client is the one whose name that ABC released.

5. Moreover, your failure to deny your client was the person in the ABC release is at odds with your subsequent assertion of rights, or possible legal consequences. It appears the implicit threat of potential legal consequences is not based on a desire to protect your clients’ rights, but to apparently obstruct public discussion of the ABC error, disclosure. Whether your client is or is not the subject of that discussion is out of your control, nor do you or anyone have the legal foundation to prevent anyone from discussing a governmental interest, to which you have not affirmatively denied your client is related.

6. The only way your client appears to be able to assert any credible legal rights against ABC is if your client is the one identified in the photo. Whether the disclosures is or is not accurate is a separate matter from whether the public may or may not discuss your client, the photo, the ABC disclosure, the facts and assertions about the events, your letter, or your legal assertions. Once you have disclosed the information in your letter, your letter, combined with the ABC disclosure may leave some with the impression that the informant is correct, and that your letter is confirmation that the initial disclosure is substantially true, and a reasonable issue for public discourse, debate, discussion, examination, and review.

7. Had your client chosen another legal strategy, we may find ourselves at a different juncture. Again, this is not necessarily a claim that you have or have not failed your client, nor that you have or have not necessarily provided limited options. Those are legal matters which you and your client have the contractual arrangement and agreement to advance as you jointly agree. Whether your client does or does not wish to lead his case, or whether you or your law firm are attempting to manage the case in a manner that may potentially backfire or severely undermine your clients privacy is not a matter we necessarily are in a position to comment on. In our view, your letter has backfired, and has substantially confirmed the essential details of the initial ABC disclosures.

8. Here are some questions the war crimes prosecutor may wish to direct to your or your client, Jordan Edmund.

a. Please discuss any conversations your client may have had with any member of Congress, page, or Staff member assigned to the Congressional Staff.

b. In your letter to Mr. William Kerr you have openly provided a work product which does not include a confidentiality statement. As you well know under the federal rules of evidence and attorney professional standards, a public disclosure and comment to a non-represented client requires certain accommodations. Is it your intention to publish future correspondence on your website, and do you plan to make accommodations for your client if a war crimes prosecutor seeks to interview him?

9. In your letter you state emphatically that there is no issue:

Whether this is true or not is beside the point. Without any foundation or legal permission, you are stating that our client is the person associated with the Ims. Neither ABC News nor Brian Ross have [stet] been error free in their reporting in the past. You should not assume that they are correct now. [Note: Should be “has been”, nor “have been”]

10. However, your comments fail to deny what has been publicly asserted. The issue is not, contrary to your assertions, whether there has or has not been a disclosure, but whether there has or has not been a sufficient denial. We see no evidence that the denial exists, and we may presume that the information is true.

11. As you well know, public figures identified through legal means are not entitled to absolute privacy. it is true that your client may be a limited public figure, and you have the legal authority to request that someone seeks assistance and cooperation, but you do not have the authority to imply or suggest that publicly reporting open information may subject someone to legal consequences. As you well know it is not appropriate to threaten someone with criminal sanctions. If you or your client has suffered damages, then feel free to include that in your next message.

12. You also suggest that someone has made an effort to do or not do something. However, in your letter you fail to outline specifically what you have or have not done to show that this information is unique to a specific person; or that the effort has not already been accomplished using lawful methods. Please describe the basis for your allegations, and your reasons for concluding that the person you wrote the letter to is the only person who has this information.

Therefore, I respectfully demand that you cease any further efforts to identify our client with these alleged Ims and cease publishing such information on Passionate America. Neither you nor Passionate American is authorized to use any photograph of him, his name or his personal information.

13. For purposes of clarification, perhaps if you or your client may provide a copy of the information you are referring. If you have a copy of the IMs, the photograph, or indication of how it was or was not used, you are free to include that in your response. Based on your letter you provide no web reference, nor describe where someone might go to review this information, or make a decision as to whether the information is or is not appropriate.

14. You failed to discuss the photograph, and whether it was or was not part of a collection, work, or other transformative product. If you client is a limited public figure, you well know under the Landham act that his picture may be used in any means so long as it does not advertise a commercial product, nor is it used to engage in commercial practices.

15. As to your claim that someone is or is not authorized to do something, you have failed to state a specific basis to assert why someone who has allegedly been linked with a matter of public interest is or is not the reasonable target for public commentary, derivative works, or other factual discussion. As you well know under the copyright, trademark, and patent law ideas cannot be protected; only specific work.

16. As to your claim that someone may be inappropriately doing something, this may be true. But you fail to cite specific case law, statutes, or any authority. Granted, if you had a bonafide dispute that someone was doing something wrong, it might be easy to accommodate a discussion. You have failed.

17. As you well know, matters of public interest, news, and other matters related to politics are matters of public interest and concern. These are legitimate issues of commentary, public opinion, and other discussions which relate to news. These are protected issues. You and your client may request, but have no legal foundation to demand, that someone do nor not do something.

18. In your request you have failed to discuss which specific threats your client has received based on the information; or what the linkage was between your client’s reaction and the reasonable public discussion of this matter. Again, if your client has or has not suffered some harm this remains an issue for the court to adjudicate, and for you to prove that something foreseeable as being a page could or could not result in being allegedly linked with a war crimes investigation.

19. As to the larger issue of whether something has or has not criminal happened, this is premature. Indeed, at this juncture, the FBI is fully disclosing inconsistent information. Whether the FBI or ABC do or do not discuss information is beside the point. Your job as counsel is to advise your client to their rights, not attempt to confuse the issue. If you desire to amicably discuss this issue, feel free to enter the public discussion.

20. You and your client are legitimate targets for an alleged war crimes investigation. Based on your clients alleged proximity to the war crimes-targets in Congress, you client may be the subject to increased public scrutiny. Whether this is something that they contemplated when they deiced to be a page is irrelevant. Under the laws of war, when a nation engages in alleged illegal conduct, all personnel who may have been in a position to prevent, report, or otherwise stop that illegal conduct are possible witnesses to alleged war crimes.

21. If your client wishes to discuss their contacts, conclusions, what they heard, while they may or may not have been involved in the Congressional page service is obviously not your immediate concern. However, you fail to state what the basis is for your continued public comments. Even if the statements as you represent them are true or false, you fail to state with any specificity what should or should not be done; which comments you have a problem with; or whether the continued posting or non-posting of that information will or will not suffice. Again, you are being imprecise with what your concerns are, which language you disagree, and what you specifically wanted changed.

22. For example, one remedy, which you apparently failed to consider and did not specifically mention in your letter, and would not change your point, is whether your client had the word, ALLEGED in front of his name. Again, changing the content of the information would not be in your client’s interest. From this juncture it does not appear as though you really want the words to change, but you want to deprive someone from commenting on an issue of public interest.

23. Suppose your proposed remedy is to have the photograph -- which you have nor specifically cited, referenced, or linked to -- removed. Does this necessarily address your concern? Perhaps the solution to the problem is to permit anyone to post the photograph, but with the eyes blacked out. You make no accommodation for this approach in your letter.

24. You also fail to explain why the specific information you have provided is or is not something you want given public commentary. In your remarks you do not state that your comments are private, rather they are an open letter, which could feasibly be interpreted, translated, and sent to any reader on the planet. Is it your intention that your comments remain above commentary?

25. You fail to state why an inadvertent disclosure remains protected. QUOTE: "You have indicated that ABC News mistakenly published these alleged Ims and that you should not have been able to obtain this information." ENDQUOTE The rules of evidence, privilege, and discovery do not permit continued protection of what has been revealed. It appears your issue belongs with ABC, not with someone that is using publicly available information. How this information was obtained, especially when provided in the open, is irrelevant. Your issue is with ABC. It remains to be understood whether your clients alleged threats of "liability" are interpreted as extortion or some other matter. Again, we make no claim that your client has engaged in any crime, wrong doing, or necessarily have any first hand information about alleged war crimes committed by members of Congress.

26. Your analysis is imprecise. You openly admit that ABC has released the information, yet you contradict yourself and suggest that this disclosure is not something that someone can rely on. Here is the language:

You have indicated that ABC News mistakenly published these alleged Ims and that you should not have been able to obtain this information. Whether this is true or not is beside the point. Without any foundation or legal permission, you are stating that our client is the person associated with the Ims.

27. Note closely your inconsistency: You acknowledge that someone has indicated that ABC made an error; yet you make no account for whether that error is or is not unlawful; or what action you may or may not have taken against ABC. Thus, to suggest that anyone, relying on public information, does or does not have a "legal" authority or permission or foundation to use that public information misses the point. You cite no authority that indicates why public information can or cannot be used. Again, your analysis fails to look at the ABC and potential error of the corporation.

28. The problem you and your client now have this that you have failed to ensure that the issue remains off the radar. Rather, the war crimes prosecutor has your name, and they have communicated an interest in getting information related to alleged war crimes. Are you asking that ABC not discuss this, or not post your image when discussion your potential reaction to these questions; and are you suggesting that you, now a public figure, have an exclusive control over your image when it relates to news? This would be quite a change in the law which permits anyone to comment on matters of public interest. In your response, please discuss who your counsel is so that we might appropriately discuss your legal options and whether you do or do not have sufficient legal representation. If you would prefer the media, war crimes prosecutor, and other personnel to directly contact you, feel free to say that you will plan to represent yourself, and that no intermediary need be contacted for further questions related to alleged war crimes evidence.

29. As you well know, the world is full of information. How that information is obtained, acquired, pieced together, or assembled is a different issue. In your comment you state, "Like all individuals and institutions, they occasionally make mistakes. Therefore, I respectfully demand that you cease any further efforts to identify our client with these alleged Ims and cease publishing such information on Passionate America." Implicit in your request is the desire to protect information which has been inadvertently released by ABC, not the person you wrote the letter to. You have no way of knowing how many other people have the information, where it is archived, or what form the information is obtained, secured, transferred, or otherwise indexed.

30. Whether open source information has or has not been combined with other non-classified information remains an issue you have not expressly discussed. In your letter you make no provision that open source, non-classified, non-protected information has or has not been used. It is one thing to claim privacy; quite another to demand that someone keep private what is no longer private. In so many words, by writing your letter, does your client understand that you may have allegedly engaged in legal malpractice; and that you possibly could have subjected your client to a lawful counter claim for having allegedly threatened someone to not do something they are Constitutionally entitled to do: Use open source information, review information, combine data, and otherwise engage in lawful, open inquiry. There is precedent for bringing action against counsel when they induce others to remove infromation from a website using false, misleading, or assertions of law that they know or should know are false, misleading, or not reliable. [ Public Information in re CNN ]

31. Again, this is no claim that you have or have not engaged in any malpractice, or that your client is necessarily sending a letter to the wrong party. Rather, this merely suggests that by making your letter known to a third party outside the original dispute you have invariably disclosed the nature of your concerns to someone who has no obligation to protect the information, nor are they necessarily in a position to heed your demands, or respond to you. Again, whether your client chooses to seek monetary damages from your attorney insurance company is another matter; and we make no claim that most attorneys are typically sued at least once by their clients for alleged malpractice and invariably settle because they allegedly do not wish to have the public realize they may have made a simple problem much more complex. The problem is that the original objective of the letter -- to resolve a problem -- has not only apparently backfired, but possibly subjected your client and your law firm to unneeded public scrutiny. Your error was to document the allegations in writing, and implicitly assert that the wrong party has a legal duty to do or not do something. This does not inspire public confidence in the American legal profession, but does the opposite, diminishing public sympathy when members of the legal profession are the subject of public ridicule, commentary, and scorn.

32. Let's consider your request as it relates to a matter of news, public interest, and a description related to alleged war crimes, and other matters which this Congress well knows is potentially the scope of the larger inquiry your client allegedly may have direct knowledge: "Neither you nor Passionate American is authorized to use any photograph of him, his name or his personal information." You fail to discuss which photograph you are referring; and you fail to discuss the basis for your concern; nor do you state how the photograph was obtained; nor do you point to anything which would suggest the photograph was or was not improperly obtained; nor do you discuss how your clients alleged news-related activity does or does not immunize him from public commentary; nor do you discuss how ABC, which allegedly is the source of the photograph, is or is not allegedly complicity in the initial disclosure. Based on your letter we have no idea which photograph you are referring, whether the photograph exists, whether ABC or someone else crated the image; whether the photograph is real; or whether your client has already disclosed the photograph to third parties. Again, your letter is not helpful.

33. In your letter you also state, "You should consult with an attorney who is experienced in civil and criminal liability regarding the internet." That goes the same way, but in your case and your client, you may wish to consult with a malpractice attorney, and an attorney who is an expert in war crimes, Geneva, and other alleged illegal conduct your client may have been a witness to. Might I also add, you should also seek the advice of a senior partner who may not necessarily be with your firm to assist you in your writing skills. Your writing is not impressive, but that's just a personal opinion and is not meant to be indicative of what I personally believe is questionable analysis of a very simple problem.

34. You implicitly assert that the issue does rest with ABC, "If you are correct that ABC News should not have released the alleged AOL screen name and that ABC News has risked civil and criminal liability because of the unauthorized release, then your republication of the unauthorized release likewise exposes you to possible liability." This is not an issue of republication, but whether the disclosed informatiion be put back into the bottle. Your words is a problematic statement: You fail to state why the original release of information was or was not authorized; or, even if illegal, why the disclosure of that now-disclosed information is actionable. Indeed, you too could be prosecuted for interfering with a war crimes investigation, and as you well know the possible consequences for this may include the death penalty.

35. Counsel, although I appreciate the predicament your client is in -- in having been publicly identified -- your letter is not well written. I would have preferred something a little more cordial as in, "Hay, we're really sorry about this confusion, could you be so kind. . ." but that didn't happen.

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36. Now it's my turn. When you go back to discuss these legal issues with your law firm partners, perhaps you and the American Bar Association -- which, in my personal opinion, is a cess pool -- could come up with a really good story to explain to the American public why these alleged war crimes have lasted since 2001, but are only now coming to light. Do you have an explanation why the American Legal Community, Congressional Page Service, and war crimes prosecutors were not able to embark on a course of conduct that would otherwise not prevent additional war crimes?

37. In the future, if you wish you or any of your clients to get any consideration, you may wish to consider whether you and your counsel have or have not adequately reviewed the issue with the original source, in this case ABC. From this perspective, it appears as though you have failed to resolve the issue, and are attempting to target those who may be less familiar with rights of publicity, copyright law, and issues of evidence. Again, this is not intended to be a public rebuke of your legal skills, but merely a caution that this issue might have been resolved had you privately worked with the ABC counsel and sought a more diplomatic way to resolve this issue between ABC, your client, and the people who have the information you are apparently trying to suppress.

38. As a suggestion, perhaps you, ABC, and those who are in receipt of this information, could jointly agree to protect what could be protected; and to openly discuss what is a matter your client cannot lawfully control. If you and your client are not able to come to an amicable agreement as to what is appropriate, given the apparent ABC error, then it is not appropriate for you to shift your apparent clients’ issue with ABC onto a fourth party. Perhaps this is your idea of a resolution, but I remain unimpressed.

39. Going forward between now and the 2008 election, two years from now, you and your client are now public figures. You are advised to seek counsel to discuss your rights of publicity, and others issues; and explore your legal options with respect to Hollywood, script writing, and other things. If it is your intent that you pursue these issues with your client, I suggest you contact an attorney who is familiar with entertainment law. Perhaps you have already done that and this is merely a reminder of what you already knew.

40. Overall, if it was the intent of your client and your firm to attract attention, you have succeeded. Make no mistake, you have well positioned yourself and your client: You have successfully annoyed ABC by not working with them; and have targeted what may be an innocent by stander; all the while perhaps not spending the time discussing the inevitable: Your clients walk through Hollywood, with you close at hand whispering, "That's 10%, right. . . " Then again, who is anyone to suggest to your client that they might be able to secure an agent and become a movie star, write a book, and become famous. Maybe you already discussed this, and this is part of your "big plan" to become a Supreme Court justice. Wouldn't that be amazing.

41. The above has covered a lot of territory. As a courtesy to you and your law firm practice management, please find attached the following checklist which your legal secretary may incorporate into your case file:

___ Sending a letter in a non-private form may subject counsel to an allegation of legal malpractice by client

___ Failing to specify damages in a demand letter may generate a response that is less that favorable to the client

___ Failing to consider options which may substantially advance clients legal interests may subject counsel to an allegation of legal malpractice

___ Disclosing, and making out of court statements not related to any official filing or motion are not protected, and may be introduced as evidence

___ Failing to deny something could tilt the scale away from the client; the letter may be introduced to the public debate, discourse, or a war crimes trial for purposes of discovery, identifying possible witnesses for a war crimes prosecutor.

___ Asserting legal rights in a matter than one supposedly has no legal interest is not consistent with what some may presume to be effective case management

___ Asserting rights over a disclosure tends to substantially confirm that the matter being discussed is the subject of client interest, something which the client may not want to have disclosed to the public, much less the opposing counsel

___ Sending a demand letter in a non-protected format to a party not represented by counsel could subject the client to public discussion, thereby attracting the very attention your client may had hoped to avoid

___ There is a potential problem for the client when we assert rights; but the only way those rights can be enforced is by proving or disproving a matter which the client may not wish to have discussed, disclosed, or confirmed.

___ It is potentially a flawed legal strategy to (a) asserting the clients rights are being advanced by (b) relying on fact patterns and evidence the client may not wish to have disclosed.

___ Arguing a clients legal rights, based on fact patterns the client does not want to disclose could potentially backfire; especially when opposing counsel, the public, and open source media perceive that the client is unable to credibly implement the possible litigation threat. This tends to undermine confidence in the in clients legal assertions and the public statute of the law firm and partners.

___ Publicly commenting that a clients legal rights may be asserted using information the client may not wish to have disclosed tends to incite public mockery.

___ Failing to deny a fact when one asserts that matter is a basis for a legal claim tends to make a fatal admission, or non-denial when the client might reasonably expect that the denial be emphatic. Conversely, it may be prudent to keep silent on a matter than attract attention to that which we want to have protected.

___ Calling attention to a matter which has been inadvertently disclosed does not tend to ensure that information will be suppressed. Rather, the disclosed information, even when inadvertent, remains a public new item which anyone may reasonably comment. Any implied or overt threat of legal sanctions could put the client’s legal position at risk, and adversely affect the firm in the form of a legal malpractice claim.

___ It is imprudent to issue a letter that fails to resolve an issue, but essentially confirms facts, information, or data the client would like to have protected.

___ It is a potentially flawed legal strategy to issue a demand letter which leaves the impression the data the client wants protected is true, especially when the data cannot lawfully be protected, not reviewed, or is now part of the public record.

Let’s consider the other legal options and strategies which your client apparently has failed to consider. This is by no means a reflection on your firm, nor is it necessarily a claim that your client may have hired counsel that is not experienced in the legal issues at hand. We make no claim that your firm has engaged in legal malpractice, nor are we suggesting that your firm has entered a practice group another firm may have better experience. However, we would be remiss if we did not summarize the above points. How you and your client choose to act on this information is by no means related to whether this information is or is not true. Only you and your client can jointly make an informed decision how to proceed.

The essential problem is your client’s information is now in the public domain. The issue you and your client appear to have ignored is how to advance your clients long-term interests, as opposed by the short term gain of having the public read your demand letter and possibly remove the information. Here are some useful things you and your client have probably already discussed:

___ Discuss book deal with publisher

___ Find entertainment attorney

___ Discuss with senior counsel pan to improve writing skills

___ Contact malpractice attorney

___ Contact American Bar Association: Ask them why they have failed to review the alleged war crimes issues in re Members of Congress, DoJ Staff counsel, and State level attorney disciplinary board reviews.

___ Contact war crimes attorney

___ Remind client that the case is theirs, not the firms.

___ Remind client that firm has insurance for legal malpractice and may be able to reach an amicable settlement to resolve the alleged legal problems which client may wish to discuss with a legal malpractice attorney.

___ Remind client that counsel tends to settle legal malpractice claims, especially when they are high profile, and there are allegedly public errors which severely undermine client’s rights.

___ Remind client that a legal malpractice attorney may wish to review the case, and consider whether the original claim would have succeeded; if the original claims in the original demand letter were insufficiently detailed, then the client may or may not have a valid legal claim had original counsel correctly identified the correct potential defendant, in this case ABC.

___ Remind client that the client has the power and discretion how to settle the issue; and that legal counsel can only provide options. The client and the opposing party may directly discuss issues and leave counsel out of the direct communicatin. The final decision is up the client. The job of the counsel is to ensure the client understands the legal options, and is fully apprised of the risks associated with that approach. Writing a letter is not an just an act of the law firm, but an act which the client is attached. If there are allegations of harassment related to the contents of the attorney work product, this could be an issue which attaches to the client. It remains a matter for the court to review whether the alleged legal malpractice does or does not rise to a level that warrants disbarment or other sanctions.

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Original Letter

Stephen Jones Letter: CC: Rod Nixon

Dear William Kerr and Passionate America:

Please be advised that I represent Jordan Edmund. It is our understanding that you and Passionate American are identifying Mr. Edmund with certain Instant Messages ("IMs"). You have indicated that ABC News mistakenly published these alleged Ims and that you should not have been able to obtain this information. Whether this is true or not is beside the point. Without any foundation or legal permission, you are stating that our client is the person associated with the Ims. Neither ABC News nor Brian Ross have [stet] been error free in their reporting in the past. You should not assume that they are correct now. Like all individuals and institutions, they occasionally make mistakes. Therefore, I respectfully demand that you cease any further efforts to identify our client with these alleged Ims and cease publishing such information on Passionate America. Neither you nor Passionate American is authorized to use any photograph of him, his name or his personal information. You should consult with an attorney who is experienced in civil and criminal liability regarding the internet. If you are correct that ABC News should not have released the alleged AOL screen name and that ABC News has risked civil and criminal liability because of the unauthorized release, then your republication of the unauthorized release likewise exposes you to possible liability.