Following two weeks of intense scrutiny and widespread condemnation from media and free speech advocates, a federal judge on Feb. 29, 2008 reversed an order aimed at blocking all access to a Web site devoted to the unauthorized publishing of government and corporate documents.
On Feb. 15, 2008, Judge Jeffrey White of the Northern District of California approved a permanent injunction of Wikileaks, http://wikileaks.org/, a Web site which says it seeks to “reveal unethical behavior in … governments and corporations” through the unauthorized disclosure of documents. The injunction was part of an agreement struck by plaintiff Julius Baer & Co., a Swiss bank, and defendant Dynadot, the California company that registered Wikileaks’ domain name. Julius Baer & Co. filed suit against Wikileaks and Dynadot on Feb. 6, 2008, claiming that the Web site had posted private banking information online.
The Web site TPM Muckraker wrote that Wikileaks has gained notoriety for making available a number of high-profile documents. Rules of engagement for U.S. troops were posted there in early February 2008, and in late 2007 copies of the 2003 and 2004 versions of operating manuals for the Guantanamo Bay prison were leaked to the site. According to an American Civil Liberties Union (ACLU) Feb. 27, 2008 press release, the government had resisted releasing the operating manuals in response to a 2003 Freedom of Information Act request. (The TPM Muckraker story is available at http://tpmmuckraker.talkingpointsmemo.com/2008/02/us_court_shuts_down_whistleblo.php.)
Wikileaks says it was “founded by Chinese dissidents, journalists, mathematicians and startup company technologists, from the US, Taiwan, Europe, Australia and South Africa” and calls itself “an uncensorable version of Wikipedia for untraceable mass document leaking and analysis.” The site has a nine-member advisory board, but no formal ownership, and claims not to be responsible for its content. Although it is not affiliated with the popular editable encyclopedia site from which it takes its name, it functions in much the same way, using the same software. Users can anonymously post documents on the site for others to scrutinize and discuss.
The February 15 injunction required Dynadot to immediately lock and disable the “Wikileaks.org” domain name in order to block access to the site and prevent any changes being made to it. The stipulated permanent injunction was accompanied by a temporary restraining order White issued that forbade Wikileaks to display the specific documents at issue. White’s February 29 order in Bank Julius Baer & Co., Ltd. v. Wikileaks.org and Dynadot, LLC, No. C 08-00824 JSW (N.D. Cal. 2008) dissolved both the injunction and the restraining order, and also denied another motion from Julius Baer & Co. for a preliminary injunction.
According to their complaint, Julius Baer & Co. claimed that a disgruntled ex-employee provided the stolen documents to Wikileaks, violating a confidentiality agreement along with international banking and consumer protection laws and California privacy laws. Wikileaks claimed “the documents allegedly reveal secret Julius Baer trust structures used for asset hiding, money laundering and tax evasion,” according to The New York Times on February 19.
The Times reported that Internet users everywhere, including the United States, could still access Wikileaks after Dynadot placed restrictions on the site. Its Internet Protocol (IP) address was unaffected by the injunction, as were a number of “mirror sites” Wikileaks maintains, which are copies of the site set up in various countries used to insure against outages and to sidestep legal action. Wikileaks has registered mirror sites in Belgium, Germany, and the Christmas Islands, the Times reported.
The February 19 injunction raised strong criticism from media and civil rights groups.
In a February 25 editorial, the Chicago Tribune said the court “seem[ed] to have forgotten something important – the 1st Amendment to the Constitution,” concluding, “Censorship is censorship, no matter the medium.”
The New York Times’ February 21 editorial said that the injunction against Wikileaks “stifle[d] important speech and violate[d] the First Amendment.”
In the February 27 ACLU press release, Ann Brick, a staff attorney with the ACLU of Northern California, said, “Blocking access to the entire site in response to a few documents posted there completely disregards the public’s right to know. It’s unconstitutional and un-American.”
Media and free speech advocates also took an active role in the February 29 proceedings before the District Court in San Francisco. Wikileaks did not have a representative in court on February 15, and both the injunction and restraining order were entered unopposed, according to White’s February 29 order.
In contrast, by February 29 the District Court had received two motions to intervene as defendants: one from the ACLU and the Electronic Frontier Foundation (EFF) and the other from Public Citizen and the California First Amendment Coalition; as well as an amicus brief filed by a media coalition made up of The Reporters Committee for Freedom of the Press, the American Society of Newspaper Editors, the Associated Press, Citizen Media Law Project, the E.W. Scripps Co., Gannett Co. Inc., The Hearst Corporation, The Los Angeles Times, National Newspaper Association, Newspaper Association of America, Radio-Television News Directors Association, and the Society of Professional Journalists.
In addition to the attorneys for Julius Baer & Co., Wikileaks, and Dynadot, lawyers for the amici organizations were allowed to present arguments in the three-hour February 29 hearing, according to the San Francisco Chronicle.
The media coalition’s 24-page brief argued that the blanket injunction of the Wikileaks site was grossly overbroad in light of a well-established strong presumption of unconstitutionality of prior restraints. The brief cited bedrock First Amendment cases such as New York Times Co. v. United States, 403 U.S. 713 (1971), commonly known as the “Pentagon Papers” case, in which the Supreme Court struck down an injunction against The New York Times and The Washington Post for publication of a secret history of the Vietnam War leaked to them by an unnamed source, and Near v. Minnesota, 283 U.S. 697 (1931), a case in which the Supreme Court struck down a so-called “gag law” that enabled state officials to enjoin publication of “malicious, scandalous and defamatory” publications.
“… [T]he First Amendment prohibits prior restraints in nearly every circumstance, even when national security may be at risk and the press’s source is alleged to have obtained the documents unlawfully,” the media coalition wrote. “The privacy and commercial interests Plaintiffs cite are simply not on the same order of magnitude required to justify a prior restraint, and the grab bag of federal, state, and foreign laws they cite do not authorize prior restraints.”
In addition to raising fundamental First Amendment concerns, some suggested that the futility of the injunction against Wikileaks brought into relief the power and complexity of online information sharing.
The New York Times, in its February 19 story, said the availability of the mirror sites and immediate publicity of the injunction were illustrative of “how quickly Web communities will move to counter actions they see as hostile to free speech online.”
In his February 29 order, White explained that the injunction probably violated the First Amendment. “It is clear that in all but the most exceptional circumstances, an injunction restricting speech … is impermissible,” White wrote.
White wrote that the injunction was also ineffective and, in fact, “had exactly the opposite effect as was intended.”
“[T]he press generated by this Court’s action increased public attention to the fact that [the banking information] was readily accessible online,” White wrote, adding “there is evidence in the record that ‘the cat is out of the bag’ and the issuance of an injunction would therefore be ineffective to protect the professed privacy rights of the bank’s clients.”
Matt Zimmerman, senior staff attorney at the EFF, told The Associated Press (AP) on February 29 that the ruling showed that Judge White recognized that “the genie is out of the bottle.”
“The reality of the Internet makes it difficult for him to issue an order that will have any impact, given the fact that all the material is already out there,” Zimmerman said.
According to the San Francisco Chronicle on February 29, as White announced his ruling from the bench, he said he was encountering “a definite disconnect between the evolution of our constitutional jurisprudence and modern technology.”
White’s February 29 order also said federal courts may lack subject matter jurisdiction over the case altogether. White wrote that Julius Baer & Co. failed to show that Wikileaks, or anyone responsible for its operations, is based in the United States. The bank based its claim, in part, on the Alien Tort Claims Act, 28 U.S.C. section 1350, which allows non-U.S. citizens to sue for “a tort committed in violation of a treaty of the United States.” However, White pointed out that the bank has not stated a cause of action under a specific treaty.
According to the AP, Julius Baer & Co. withdrew its lawsuit against Wikileaks on March 5. In court papers, the bank did not give a reason for dropping the suit and reserved the right to refile it later, the AP reported.
According to the San Francisco Chronicle, Paul Levy, an attorney with Public Citizen, a group supporting Wikileaks, said he did not believe a loose network of activists like Wikileaks is even susceptible to a lawsuit.
– Patrick File
Silha Fellow and Bulletin Editor