Wikileaks unplugged, free to flow

From the Spring 2008 issue of The News Media & The Law, page 32.

News organizations and free speech advocacy groups breathed a sigh of relief in late February when a federal judge backed away from an earlier attempt to unplug a whistle-blower Web site.

U.S. District Judge Jeffrey S. White’s initial Feb. 15 order to shut down Wikileaks, a Web site that posts leaked materials online, sent a shock wave through the new media community, raising concerns about a possible chilling effect on Web publications.

In response to the injunction, multiple press organizations, including The Reporters Committee for Freedom of the Press, organized to combat what they argued was an illegal prior restraint.

White accepted this argument and reversed course, dissolving a previous order that required the site to be taken offline and indicating he would not approve a second order prohibiting the site’s publication. Less than a week later, the lawsuit was dropped.

Leading attorneys on the case hope that it will serve as a lesson to both plaintiffs and judges that such an overbroad strategy to attempt to limit a narrow scope of material on the Internet will not be successful.

The Wikileaks example

The Swiss-based Julius Baer Bank and Trust filed a lawsuit against Wikileaks and its domain name registrar, Dynadot LLC, on Feb. 6, for publishing documents that it alleges were stolen by a former employee and “reveal secret Julius Baer trust structures used for asset hiding, money laundering and tax evasion.”

In the initial filing, the bank referred to Wikileaks as an “alias and/or entity of unknown type and origin.”

The court received no response from the owners of wikileaks; the operators of the Web site are anonymous, so there was no official representative to take action against.

“It is one of the first cases in federal court to apply to a purely online entity that bears little resemblance to traditional forms of legal corporations,” said Peter Scheer of the California First Amendment Coalition. “There is no formal community of users.”

On Feb. 15, White ordered Wikileaks to refrain from “displaying, posting, publishing, distributing, linking to and/or otherwise providing any information for the access or other dissemination of copies of and/or images of the JB Property.”

That order could not be enforced because there was no representative from Wikileaks to remove the bank documents.

A separate order against Dynadot, to which the company agreed so that the suit against it would be dropped, required the registrar to remove the address of the site from its records and not allow it to be moved to another registrar. The intended effect was that while the Web site would technically still be online, no one would be able to look up its address. (see box, Looking up an Internet site)

The mandate, however, was largely ineffective; mirror Web sites that operate through other registrars in countries around the world transmitted the information on separate sites. Additionally, the injunction, meant to help the bank keep the information secret, instead brought greater media attention and encouraged the public to seek out the documents that were supposed to have been removed from the Internet permanently.

“Attempting to interfere with the operation of an entire Web site because you have a dispute over some of its content is never the right approach,” Electronic Frontier Foundation senior staff attorney Matt Zimmerman said in a statement. “Disabling access to an Internet domain in an effort to prevent the world from accessing a handful of widely-discussed documents is not only unconstitutional — it simply won’t work.”

The Reporters Committee joined a friend-of-the-court brief with an array of other press organizations, including the American Society of Newspaper Editors and the Newspaper Association of America, arguing that the restraint was overbroad and unconstitutional.

On Feb. 29, the court held a four-hour hearing with lawyers representing the various interested groups, including the media coalition as well as EFF, the ACLU, the California First Amendment Coalition and Public Citizen, which had all sought to intervene in the case.

Judge White started the hearing off by noting the “unusual situation where the parties have agreed to something and agreed to a disposition, the Court approved the disposition and it’s become the order of the Court, and then after the fact, parties with purported interests have come along.”

“We started emphasizing that the court didn’t have a whole lot of facts in front of it” said Thomas Burke, a media lawyer from San Francisco representing the media groups, noting the bank had acknowledged it knew the documents were stolen more than two years before and thus did not urgently need a restraint.

“We were essentially arguing in place of Wikileaks to have the prior restraint removed,” he said.

Ultimately, Judge White was persuaded and lifted the temporary injunction the day of the hearing.

“As made abundantly clear by the various submissions of the amicus curiae, the current request for an injunction, as well as the Court’s original entry of a stipulated injunction, raises issues regarding possible infringement of protections afforded to the public by the First Amendment to the United States Constitution,” White wrote in a subsequent written opinion.

“It was gratifying and important to see that Judge White clearly understood that First Amendment rights are very much implemented in this context — the doctrine of prior restraint does apply,” Scheer said.

With the Internet growing as an important form of newsgathering and news distribution, Scheer added he does not think that this is the last case the courts will see attempting to shut down a Web site.

The coalition of attorneys was pleased with Judge White’s willingness to review the case and recognize the serious infringement of the First Amendment that had occurred.

“The case teaches us that when judges try to move very quickly, mistakes are made,” said Paul Alan Levy of from Public Citizen.

Has technology surpassed the law?

At the conclusion of the hearing, White said he recognized the “definite disconnect perhaps between the evolution of our constitutional jurisprudence and modern technology.”

White continued, “And what I mean by that is we live in an age where people can do some good things and people can do some terrible things without accountability, necessarily, in a court of law.”

Stanford Law School professor Roland Vogl, an expert on Internet law, said that aside from questions of the court even having subject matter jurisdiction over the foreign entities involved, the case boiled down to the trouble that judges face when trying to use legal tools such as a temporary injunction against Web sites.

“Issuing the broad restraining injunction did not serve its intended purpose and was ineffective to protect the privacy rights of the bank’s clients,” he said. “It is very difficult to enforce the law against players on the Internet. Once that information is out there, it’s almost impossible to get it back and remove it.”

Zimmerman said the case is a reminder that registrars such as Dynadot are a tempting target to litigants, and customers should think about who is hosting their sites.

“The case also demonstrates and should remind plaintiffs that they can’t take such an overbroad strategy when the First Amendment is at stake,” Zimmerman said. The case was also important in showing “the futility of trying to censor or silence speech on the Internet when information can be copied around the world. It should give litigants pause.”

Less than a week after Judge White’s caution to Julius Baer Bank to consider whether they should continue litigation in light of the subject matter jurisdiction and First Amendment issues, the Bank voluntarily dropped the case, though they reserve the right to pursue their claims under an alternate court, jurisdiction or venue.