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    Media Organizations Back Wikileaks in Court

    by David Ardia
    February 27, 2008

    Yesterday, a coalition of organizations dedicated to preserving free
    speech rights on the Internet, including the Citizen Media Law Project,
    Reporters Committee for Freedom of the Press, Los Angeles Times, Hearst Corp., Gannett Co., Associated Press, and Society of Professional Journalists, filed a “friend of the court” brief in the Wikileaks case. If you haven’t been following the case, a federal judge in San Francisco issued a stunningly broad injunction on February 15 that brought down Wikileaks.org, a site that is developing what it describes as an “uncensorable Wikipedia for untraceable mass
    document leaking and analysis.”

    True to its mission, Wikileaks has served as a repository for, among
    other things, documents that outline the rules of engagement for
    American troops in Iraq, a military manual for the operation of the
    detention center at Guantanamo Bay, Cuba, and “other evidence of what
    it has called corporate waste and wrongdoing,” the New York Times
    has reported. Documents posted on Wikileaks have been used in a number
    of news stories in recent months, including stories on the U.S.
    military’s rules of engagement in Iraq (in the New York Times); the treatment of terrorist suspects held at Guantanamo (in Wired); and government corruption in Kenya and Somalia (on BBC News).

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    The case in California was initiated by Julius Baer Bank and Trust Company, a Cayman
    Islands banking entity, which was able to convince the judge to issue a Temporary Restraining Order (TRO) that enjoined Wikileaks from publishing or distributing copies of
    documents the bank claims contain “stolen or otherwise wrongfully
    obtained confidential and protected bank files and records.” The judge also issued a Permanent Injunction that ordered Wikileaks’ domain name registrar, Dynadot, to immediately disable the entire
    Wikileaks.org domain name and remove all DNS hosting
    records. While Wikileaks’ U.S.-hosted site is still in limbo, users can access the material through its many mirror sites, including www.wikileaks.be, wikileaks.org.uk, and wikileaks.cx. For more background on the case, you can read two prior posts I’ve written, here and here

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    I’ve strongly criticized the actions of the bank in a prior post on the Citizen Media Law Project Blog,
    asserting that it overreached in this case and misjudged the public
    reaction to its scorched earth tactics: Making Sense of the Wikileaks Fiasco: Prior Restraints in the Internet Age.
    In this post I want to focus on the free speech issues at stake and why
    the two orders violate longstanding First Amendment law and should be
    vacated.

    First, the TRO and Permanent Injunction are clearly prior restraints. It is easy to see how the TRO
    is a prior restraint because it enjoins Wikileaks and “all others who
    receive notice of this order” from publishing, posting, linking to, or
    otherwise using certain documents and information originating from the
    bank. This is a classic prior restraint because it “actually forbid[s]
    speech activities.” Alexander v. United States,
    509 U.S. 544, 550 (1993) (“Temporary restraining orders and permanent
    injunctions – i.e., court orders that actually forbid speech activities
    – are classic examples of prior restraints.”).

    The Permanent Injunction
    is a little more complicated to explain — even though its impact on
    speech is far more broad than the TRO — because it is directed at an
    intermediary, Dynadot. In the Permanent Injunction, the court ordered
    Dynadot
    to “lock” the Wikileaks domain and erase the “navigation information”
    that directs people to the site.
    (Jonathan Zittrain does a nice job explaining how this works here.).
    That is like telling a newspaper it can continue to print its paper,
    but the delivery drivers all have to go home. Such a prohibition on
    “distribution” is a prior restraint. See Lovell v. City of Griffin,
    303 U.S. 444, 452 (1938) (“The ordinance cannot be saved because it
    relates to distribution and not to publication. ‘Liberty of circulating
    is as essential to that freedom as liberty of publishing; indeed,
    without the circulation, the publication would be of little value.’”).
    Indeed, it is a prior restraint of the most extreme kind because it
    restrains all speech on the site, including speech
    that concerns other important issues that have nothing to do with the
    bank or its customers. See Near v. Minnesota, 283 U.S. 697 (1931).

    Second, under established First Amendment law, prior restraints — if
    constitutional at all — are permissible only in the most extraordinary
    circumstances. Prior restraints represent “the most serious and the
    least tolerable infringement on First Amendment rights,” Nebraska Press Ass’n v. Stuart, 427 U.S. 539, 559 (1976), and are presumptively unconstitutional, see Organization for a Better Austin v. Keefe,
    402 U.S. 415, 419 (1971). It makes no difference that the documents
    posted on Wikileaks are confidential bank records wrongfully uploaded
    by a former employee. See, e.g., New York Times Co. v. United States (“Pentagon Papers Case”),
    403 U.S. 713 (1971) (holding that injunction against publication of
    illegally leaked classified documents from Defense Department is an
    impermissible prior restraint).

    As the Supreme Court warned in the well-known Pentagon Papers Case,
    the First Amendment prohibits prior restraints in nearly every
    circumstance, even where national security may be at risk and even when
    the source unlawfully obtained the documents. 403 U.S. at 713. The
    privacy and commercial interests asserted by the bank simply do not
    meet the exceptionally high standard required for a prior restraint.
    See, e.g., Keefe, 402 U.S. at 419 (“Designating the conduct as an invasion of privacy” does not justify a prior restraint.); Matter of Providence Journal Co.,
    820 F.2d 1342, 1350 (1st Cir. 1986) (concluding that privacy, “although
    meriting great protection, is simply not of the same magnitude” as the
    interests that could justify a prior restraint).

    Moreover, the validity of the TRO and Permanent Injunction is further
    undercut by the broad immunity granted to Wikileaks and Dynadot by section 230 of the Communications Decency Act
    (CDA 230). CDA 230 likely immunizes Wikileaks and Dynadot from
    liability because they are both providers of interactive computer
    services and the documents were posted by a third party. As a result,
    the bank cannot establish serious questions going to the merits, let
    alone a likelihood of success on the merits, of its claims. See Optinrealbig.com, LLC v. Ironport Systems, Inc.,
    323 F. Supp.2d 1037, 1047 (N.D. Cal. 2004) (denying motion for a
    preliminary injunction because defendant was immune under CDA 230).

    Despite the clear First Amendment issues at stake in the case, neither
    the bank — nor the court — addressed the exceptionally high standard
    that must be met to warrant the shutdown of the Wikileaks website or
    the forced removal of newsworthy documents. As a result, with the help of the Cyberlaw Clinic
    at Harvard Law School and lawyers at Davis Wright Tremaine LLP, the Citizen Media Law Project and almost a dozen
    other organizations dedicated to preserving free speech on the Internet
    have asked the court in the Wikileaks case to allow us to file an Amici Curiae brief opposing continuation of the TRO and Permanent Injunction. You can read our brief here.

    Other briefs filed yesterday include a submission by the Project for Government Oversight, ACLU, and Electronic Frontier Foundation, and a motion to intervene
    in the case filed by Public Citizen and the California First Amendment
    Coalition that argues that the court did not have jurisdiction in the
    case, and therefore had no power to issue the injunctions.

    (You can follow future developments in the case by going to the CMLP’s database entry: Julius Baer Bank and Trust v. Wikileaks.)

    Tagged: cmlp prior restraints whistleblowers wikileaks
    • kathleen mclaughlin

      I am not surprised by the recent ruling that imposes an injunction and enjoined Wikileaks from publishing or distributing copies of documents the bank claims contain “stolen or otherwise wrongfully obtained confidential and protected bank files and records.” This is, after all, the era of the Bush Administration and yet another bit of influence which smacks of the packing of the court during FDR’s tenture in office. This reminds me of remarks about Bush’s ability as ‘he’s a nice guy, what harm can he do in office?’ Well, guess what? I work abroad and I can speak for many expats who are feeling the brunt of an administration that has run roughshod over not only us but the foreigners who deal with and visit us. The world does indeed resent, yes, even hate us even in Canada and Switzerland and we haven’t bombed them. The silent majority needs to stop allowing the small minority from voting into office those who bend easily to special interest groups. Bush is the latest and best example of what can happen (dollar devluation, negative world opinion of us, trillion dollar debt and deficits) when the squeaky wheel gets all the attention. Thanks for reading, Kathleen

    • The Citizen Media Law Project just received word that the judge in the Wikileaks case, Jeffrey White, has vacated the Permanent Injunction that ordered Wikileaks’ domain name registrar, Dynadot, to immediately disable the entire
      Wikileaks.org domain name and remove all DNS hosting
      records. The judge also refused to renew the Temporary Restraining Order that enjoined Wikileaks from publishing or distributing copies of purported bank documents and tentatively denied the plaintiffs’ motion for a preliminary injunction, indicating that he would issue an order addressing that motion in the near future.

      For now, the only official record from the hearing is a one-page Minute Order issued by the clerk. CNET News has also just posted an update on the hearing.

    • The Banks that brought the case have now filed a notice of dismissal seeking to voluntarily dismiss the entire case. You can read the filing on the Citizen Media Law Project site.

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