The Atlantic’s Top Lawyer on Perils of the Digital Age

This summer, Aretae Wyler, a former Williams & Connolly associate who serves as top lawyer of Atlantic Media, found herself a victim of fraud in a scam that has affected more than 60 people.

It all started in June when The Atlantic began fielding inquiries from people who said they were approached by its editors for job opportunities — except that the jobs didn’t exist.

Then, one such person informed Wyler that she had interviewed a prospective candidate for a data-entry position — except that Wyler never conducted such an interview.

“They used my picture,” explained Wyler, in an interview. “Some of the would-be victims sent, as a screenshot, me conducting an interview [on Gchat]. You could see a bubble with my picture asking a question.”

That particular job, she said, was posted on Craigslist. But there were others, as well. Unknown scammers, posing as editors and senior leaders of The Atlantic, advertised fake job openings, set up multiple online interviews with prospective candidates and even extended offers, in a scam that forced Wyler to go public with the incident last week.

After the company received more than 60 official complaints, Wyler issued a press release about the incident, in hopes the publicity would alert prospective targets of the fraud. She also said a law enforcement investigation is underway.

“These phishing attempts are very common and we need to be conscientious about what we are receiving,” said Wyler, of today’s digital world generally.

The fraud Wyler and her colleagues experienced is just the latest example of how people — and even the nation’s top lawyers — can fall prone to the nefarious antics of digital pranksters.

In September, Jared Kushner’s lawyer Abbe Lowell exchanged sensitive emails with someone he thought was Kushner, but was a scammer, and his exchange was then publicized.

Last year, Ronald Sarian, general counsel of eHarmony, shared with Big Law Business that a scammer posed as eHarmony’s CEO and Chairman and emailed employees to send their W2s for a salary review.

Wyler, who has worked as an in-house lawyer at Atlantic Media since 2013, said that such recent events have made her wary of written communication.

“I came from a litigation background, so I just always lived under the caution that you should be careful about what you put in email,” said Wyler.

Big Law Business spoke with Wyler about the recent scam that’s occupied her time. We also used the occasion to chat about her job at The Atlantic, her views on the evolving media industry – such as the emergence of native advertising – and the legal issues associated. The interview below has been edited for clarity and brevity.

 

 

 

Big Law Business: You issued a press release recently about fraudsters posing as editors at The Atlantic. What happened?

Wyler: The issue surfaced first because our editors started to get contacted over social media, asking if they had actually contacted particular freelancers. Make-up artists, photographers and animators were being contacted and being told there were opportunities to work at The Atlantic Magazine. I think this started in June.

The volume increased over the last 30 days. We do have contact information available on our websites, so people who were scrupulous in Googling started to suspect something was fishy and would reach out to people on our staff to see if we had really been in touch with them about a particular job opportunity. For editors, it was mostly targeting freelancers. There was a post in my name that was actually put up on Craigslist for a data entry position – a role for an employee.

And the perpetrators went so far as to conduct interviews over Gchat with the “candidates.” And then, they actually would hire them and in these cases, both the freelancers and the fake employees, prospective employees, would send contracts of employment and contracts to conduct freelance work. They used my picture and they actually used it when they were communicating with candidates. Some of the would-be victims sent, as a screenshot, me conducting an interview [on Gchat]. You could see a bubble with my picture asking a question.

 

Aretae Wyler, general counsel, Atlantic Media. (Courtesy photo)

Aretae Wyler, general counsel, Atlantic Media. (Courtesy photo)

 

Big Law Business: How do the scammers’ process compare to The Atlantic?

Wyler: This is how we do go about working with freelancers. We will make active outreach to freelancers and say, ‘Hey, would you like to work for The Atlantic? We saw your photos and would you consider working together?’ Sometimes it’s based on a reference but other times it’s not. They did do a good job of mimicking that process.

 

 

Big Law Business: Wow. Has anyone actually been damaged by this?

Wyler: As far as we know, we have not gotten a report yet of anyone having a monetary loss. Although I think some people did fill out direct deposit forms. At least two people told us they attempted to cash checks that were mailed to them.

 

 

Big Law Business: Huh? Why would the fraudsters send them money?

Wyler: It’s very odd. The scammers said, ‘OK, we are going to give you a cash advance on some of the work you’ll be doing and so we’ll mail you a check in such and such amount.’ In at least two cases, they sent – through priority mail – checks to two individuals. One person was able to cash it. The other bank notified them it was a fraudulent check.

We don’t quite know the purpose of why the checks were sent. But, in at least one case, after a check was sent, they said, ‘Now that you’ve received our check, let’s help you get on the phone and travel and have you give us your credit card information.’

 

 

Big Law Business: How much were the checks made out for?

Wyler: In the thousands, as I recall.

 

 

Big Law Business: How many victims have been affected by this?

Wyler: We have logged over 60, but those are only direct complaints that have been made to us and they don’t include the number contacted through social media.

 

 

Big Law Business: How do you handle a situation like this as the company’s top lawyer?

Wyler: The first thing you have to do is assess the nature of the scam. For instance, if they had been targeting people who were in our network of freelancers, we could be concerned about some sort of leak of our information. As it stands, that is not the case. It seems they were contacting freelancers at random. This was not a matter of any breach on our part. This is just a misuse of our brand and identity. We got in touch with law enforcement obviously. We got in touch with email providers. We would log all complaints we received and we were lucky enough to get in touch with Google and got a helpful response from Google in promptly shutting down email addresses and sites that were being used. But it’s a little like whack-a-mole. Some sites are shut down, but then others open up. That was when we decided to publicize it so people would be particularly careful when contacted.

 

 

Big Law Business: What are some of the other legal issues you handle at The Atlantic?

Wyler: What’s interesting is that increasingly, media companies are creating content on behalf of the clients they work with. And so, in addition to thinking about the editorial issues we would normally think about in a newsroom, we are thinking about issues related to commercial speech. And that’s where the rights and clearances part of our practice has to be more robust than if it’s in a purely editorial newsroom context. So that certainly takes up a big part of our day.

Privacy issues are increasingly becoming a focus. We are traditionally a magazine but much more of our revenue comes from our digital operation. Every privacy issue is very top of mind. There is obviously a commercial contracting component involved in our work. We work with freelancers and contributors, writers and photographers. So working out the nature of the agreements that we will have with all the various contributors to ensure that we can both be fair to them in allowing them the controls that they want to have and should have in their content, but also giving us the opportunity to use the content in our archives in the future.

 

 

Big Law Business: You led with commercial speech rights. What’s that? 

Wyler: Traditionally if you think of a journalism outlet, you think of just the work in the newsroom. And then, you think of what it means to be an ad-supported journalism outlet. If you’re thinking of [traditional digital], you’re thinking of banners and boxes. But over the last few years, there has been a rise in more custom forms of advertising and more of what is sort of referred to in the industry as digitally native experiences of advertising. So rather than just having a box or banner, there might be an actually engaging infographic or engaging article that is on the site that is written either by or behalf of an advertiser. The idea is that readers of our particular brand, it’s not on-brand for us to just have banners and boxes everywhere. Well, that’s not fair. I think what’s fair to say is, an Atlantic reader, when they come to our site, is reading great journalism. And so the advertisers want to appeal to our readers by creating great content that is interesting and a good read. One of the things we have on the site that is a great example of this is, there is a series by Nest that is running on our site and it’s advertising. But it’s a whole series on families and parents and how to stay connected with your family while you’re at work, digitally. So that plays very much into the products that Nest creates and is able to show Nest products in a story. So from a legal perspective, there are FTC considerations because we need to make sure these articles are clearly marked as advertising and all these are meant to be interesting and engaging for readers. It’s [making sure we are] not misleading the readers in who is writing the content.

We also need to get clearances mentioning other products. So if you look at the Nest example, there are different technologies that are discussed that can help you as a working parent today, as a family. It’s not all about Nest products. So we have to go out and get permission from those other products and trademark owners.

 

 

Big Law Business: How big is your legal team at Atlantic?

Wyler: Three lawyers and a paralegal.

 

 

Big Law Business: Can you speak to how The Atlantic is embracing other platforms like Facebook to distribute your news and what kind of legal implications you need to take into consideration?

Wyler: We do work together collaboratively with platforms like Facebook to ensure that if they have a preferred way of presenting content on their platform that we are optimizing our content so that it can flow through on those platforms. Obviously those platforms are driving a lot of traffic today. We have a good collaborative relationship with the technology companies to make sure our content is easily viewable on their platforms. From our perspective, our tech teams and product teams will work closely with them and, on the legal side, we will dot the eyes and cross the tees. Apple News is another platform we work with. And we make sure we are contractually covered.

 

 

Big Law Business: What’s in the contracts?

Wyler: So the contracts can cover issues of how, by putting content on a platform, how broadly are we giving rights to that platform to distribute our content. Are we saying they are limited to showcase on their platform or are they getting more rights than that? For example, if there are photos that are allowed to be showcased with a particular article, we want to make sure they will abide by our request that those photos not be re-purposed for some other use. We have to protect that because sometimes we are licensing those photos. We can’t give rights that we don’t have.

Optimization is a technical issue – it’s optimizing the way it appears on the platform. It’s not an editorial issue. We don’t customize our editorial content for platforms at all.

 

Big Law Business: In other words, you aren’t letting them dictate your news. Do you view giving a platform that kind of control to be a bad thing? 

Wyler: There is no legal implication. Think of Snapchat. There are companies that have whole divisions dedicated to creating content for Snap. So they are thinking editorially about what will flow best. We are thinking through that. It’s not because we have a relationship with a platform where they have any kind of say in the content we create, and what we consider editorially interesting. It’s more about format. And then to the extent that there is advertising permitted on the platform, sometimes there are different revenue shares that are negotiated and those will go into agreements.

 

Big Law Business: You joined The Atlantic in 2013. How have you seen your job change since then?

Wyler: It’s really changing on a daily basis. When I first arrived here, native content was very new. We had to grapple with all of the things it would mean to have native content. So starting to think about having a marketing department in a creative studio that is creating commercial content was new for us at that time. But now, that is old hat to me. At one time, working with the platforms was new and figuring out how that would work and what we were comfortable with and what rights we needed. But the digital landscape is so constantly changing. The new issues that are top of mind are privacy issues.

There is the European data protection regime that is going into effect next year that we are working to come into compliance with. As there are more sophisticated ways to track data, we have to be compliant on the legal side for it to be permissible and disclaimers have to go in place. Facebook and Google are gathering so much information about people using their platforms and the ad market not on those platforms have to compete with those platforms that know so much about the users. Increasingly, we are approached all the time by this third-party vendor or that, saying here is a way we can learn more about people and appeal to advertisers. But we have to make sure that all of those different technologies are, to the extent we are going to implement them, are complaint with laws.

 

Big Law Business: How are you working to comply with the European data protection regime?

Wyler: We’re working with outside counsel It’s a big effort. It’s a burden, for sure, on companies that have to comply with it and I know in speaking with other people in the industry that we are all feeling anxious about making sure we get into compliance by May of next year.

 

Big Law Business: What was it like working at Williams & Connolly?

Wyler: It’s a great firm. It’s a place where you get a lot of substantive experience. A lot of really smart people. I learned from my colleagues every day. I went to trial five times in five years, which was a lot. There is nothing like getting that experience at trial.

 

 

Big Law Business: How does life in-house compare?

Wyler: It’s interesting. My deputy is also from Williams & Connolly and also went to trial a lot. We spend a lot of time comparing what the two experiences are like. What’s funny is that things move a lot more quickly in-house. Rather than having a few big issues that you have to work on and get perfect, you have 200 issues hitting you each day that you have to answer quickly. I think in some ways, the pace in the day is so much more hectic and your to-do list is so much longer, but you aren’t at trial, away from your family months at a time. You aren’t pulling all-nighters and working all night.

 

Contact the reporter responsible for this story: Casey Sullivan at csullivan@bloomberglaw.com.

Contact the editors responsible for this story: Gabe Friedman at gabefriedman@outlook.com and Tom Taylor at ttaylor@bna.com.

 

 

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