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Privacy and civil rights advocates are expressing their dismay over a pair of decisions made by a California District Court judge last week to shut down Wikileaks.org, a controversial Web site that allows whistleblowers to anonymously post corporate and government documents online.
Several called the decision unprecedented and a violation of Wikileaks’ First Amendment rights. Others said the rulings were an unnecessarily provocative action that would do little to curtail the publishing activities of Wikileaks, which is mirrored on servers in several countries.
“I would say my initial reaction is shock that any judge or district court would issue an injunction that would take an entire site down,” because it published documents that someone else claimed it shouldn’t have, said David Ardia, director of the Citizen Media Law Project at Harvard Law School. “It’s contrary to any interpretation of First Amendment law.”
Julius Baer Group, a Swiss bank which, according to documents on Wikileaks, was involved in offshore money laundering and tax evasion in the Cayman Islands for customers in several countries including the U.S. In its complaint, the Swiss bank claimed that Wikileaks had published hundreds of illegally obtained confidential and copyrighted information belonging to the bank.
In response to the lawsuit, California district court judge Jeffrey White last week issued two separate rulings. One of them was a permanent injunction ordering Wiklileaks’ domain registrar, Dynadot LLP, to immediately disable the wikileaks.org domain name, and to lock it so as it prevent the domain from being transferred to another registrar.
The injunction also required Dynadot to immediately clear and remove all DNS hosting records for the wikileaks.org domain name. The court asked Dynadot to prevent the domain name from resolving to the wikileaks.org website or any other Web site or server “other than a blank park page.” In addition, Dynadot was asked to turn over all administrative and account records associated with the wikileaks.org site to the court.
Apart from the permanent injunction, Judge White also issued what was labeled as an amended temporary restraining order which essentially forbade Wikileaks from displaying, posting, publishing or distributing any material pertaining to the bank on any site that it directly owned or had any control over.
The order instructed Wikileaks to ensure that all of the bank’s information was removed from all Web sites it owned or controlled, to disable links to the material on such sites, and to provide the court with proof that it had complied with the orders. Wikileaks was also asked to immediately provide the plaintiff’s council with the name and full contact information of all their DNS hosting services, ISPs, domain registrars, Web site operators and host service providers.
The court’s orders resulted in the wikileaks.org URL being promptly scrubbed from the Internet. But as of late Tuesday, the site remained accessible by typing in its IP numbers (18.104.22.168). Wikileaks, which touts itself as an “uncensorable system for untraceable mass document leaking and public analysis,” was also available via numerous mirror sites in several countries.
In what appeared to be a hastily prepared statement on its site, Wikileaks said it had been offered little to no notice of the ex parte hearing and was not represented in court when the decisions were handed out.
The Web’s Pentagon Papers?
The rulings evoked criticism from several quarters. According to Ardia, the ruling is somewhat comparable to an action that goes back to the 1970s when The New York Times was enjoined from publishing Daniel Ellsberg’s Pentagon Papers. “This is clear prior restraint on speech,” Ardia said. “It’s to stop someone from speaking before they’ve had a chance to speak,” Ardia said.
The court ruling would also appear to show that the judge may not have realized the full import and also the futility of what he was hoping to achieve by shutting down the domain name, Ardia said. Far from suppressing the bank’s contents and limiting its exposure, the rulings appear to have had exactly the opposite effect, with more sites carrying the documents now than before the ruling. A fairer outcome would have been for the court to simply order Wikileaks to take the offending documents down, and perhaps to assess monetary damages if the site had been in violation of copyright, privacy or other laws, he said.
“It seems to me the judge may not have fully understood the way the Internet works and has issued an order that is overly broad and violative for First Amendment rights.”
Steven Aftergood, director of the Federation of American Scientists’ (FAS) Project on Government Secrecy, said the California court’s decision sets up a troubling precedent. FAS was set up in 1945 by scientists involved in the Manhattan Project, and its board of sponsors includes over 65 Nobel laureates.
“Once an order of this kind is granted it becomes easier for another court in some other case to issue a similar order,” Aftergood said. “That’s what troubles me the most.”
At the same time, Aftergood continued, the incident also raises questions about Wikileaks’ own judgment when it comes to posting leaked documents online. “Do they recognize any kind of legal privilege or is everything fair game? If everything is fair game then they are dangerous not just to tyrannical governments but also potentially to anyone who values privacy and confidentially,” he said.
Marc Rotenberg, executive director of the Washington-based Electronic Privacy Information Center (EPIC), said that from a technological perspective at least, the courts ruling is “somewhat silly.”
“There is no meaningful way the courts can restrict the dissemination of this information on the Web,” he said, especially given the fact that it is already out there.
While it is arguable that the Swiss bank may have had a valid reason for wanting the leaked documents pulled down, the court may have overreached when it ordered the entire site shut down in response, Rotenberg said. “Even if the Web site does have a few offending documents it doesn’t mean the entire site has to come down… It’s very hard to imagine that a judge would order a newspaper to be shut down on the basis of a single article,” he said; “it would be like putting a padlock on the front door of the New York Times” because of one article.
“It’s like the court used a nuclear bomb when a single shot might have been all that was needed,” added Gregory Nojeim, senior counsel at the Center for Democracy and Technology (CDT). By ruling that an entire domain be disabled, a lot of information that has nothing to do with the subject of the litigation has been affected as well, he said.
Michael Froomkin, a professor at the University of Miami law school, said that the court’s permanent injunction is not really a classic case of prior restraint on speech, because it affects the domain registrar and not Wikileaks directly. “But it’s close enough to stopping the delivery trucks on a newspaper that I think this aspect of the decision is a cause for some First Amendment concern,” Froomkin wrote in his blog.