Court Shuts Down Website

The First Amendment right to a free press generally prohibits a court from restraining the publication of information. Whether that doctrine applies to any or all of the whistle-blowing documents collected at Wikileaks.org, a court's decision to order the website "disabled" is an obvious affront to the First Amendment. Talk about killing the messenger.

On Friday, Judge Jeffrey S. White of Federal District Court in San Francisco granted a permanent injunction ordering Dynadot, the site’s domain name registrar, to disable the Wikileaks.org domain name. The order had the effect of locking the front door to the site — a largely ineffectual action that kept back doors to the site, and several copies of it, available to sophisticated Web users who knew where to look.

Judge White's order is tantamount to ordering the New York Times to cease publication because some of its stories are based on leaked information. Shouldn't the same right to a free press apply to internet websites, the most accessible means of publishing information to a wide audience?

Fortunately, the Times was kind enough to tell us where to find the information that Judge White doesn't think we should read: [more...]

The site itself could still be accessed at its Internet Protocol address ( — the unique number that specifies a Web site’s location on the Internet. Wikileaks also maintained “mirror sites,” or copies usually produced to ensure against failures and this kind of legal action. Some sites were registered in Belgium (http://wikileaks.be/), Germany (http://wikileaks.de) and the Christmas Islands (http://wikileaks.cx) through domain registrars other than Dynadot, and so were not affected by the injunction.
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    What on earth? (none / 0) (#1)
    by phat on Wed Feb 20, 2008 at 11:13:38 PM EST
    Is this China?


    What was the legal basis? (none / 0) (#2)
    by magster on Wed Feb 20, 2008 at 11:16:50 PM EST
    Don't infringements on free speech require a high threshold to justify it?

    The "legal" basis alleged (5.00 / 1) (#7)
    by scribe on Thu Feb 21, 2008 at 09:59:13 AM EST
    was that the pages posted allegedly contained trade secrets and confidential banking information.  

    I think they have a service of process problem, in the first place, in spite of the publicity this has garnered.  

    To summarize the case, a Swiss bank's branch in the Cayman Islands (jeesh) was alleged to be doing a good deal of high-level (or high-quality) money laundering.  For whom, it's uncertain.  The Swiss bank alleges that the documents were leaked by a "disgruntled former employee", i.e., the VP in charge of that branch.  That person has steadfastly denied being the leaker.

    The bank started the suit against Wikileaks and Dynadot, filing an order to show cause seeking the injunctive relief.  Dynadot and the Bank came to an agreement on how to settle their dispute which, if you read the order as signed, includes a complete dismissal of the suit against Dynadot.  

    The bank's lawyers gave Wikileaks a couple hours notice, via email, of the suit itself and the hearing at which the order (agreed-to between the bank and Dynadot) was entered.  This, despite having had the order before the judge for some days.  This is what I'd call "sharp practice" (i.e., disfavored).  If this were a regular lawsuit for just money damages (since it has an order to show cause, it isn't), in my opinion using e-mail would be a constitutionally-dubious method for service of process unless there is a separate order in the case file under F.R.Civ.P. 4 authorizing it.

    All service must give the party sued "notice" and "an opportunity to be heard".

    My 2008 Rules book has the following comment on Rule 4:

    Recently, and cautiously, courts have, on occasion, ordered alternate service of provess by electronic mail (e-mail) in cases involving international defendants with a known email address, engaged in internet activities, and attempting to evade service by other means.  Noting the many complications with e-mail service (e.g., an inability to confirm actual receipt of an e-mail message, system compatability issues, possible failure of attachments [such as exhibits] to transmit, be received, or be "opened" in comprehensible form, etc.), courts have granted e-mail service only upon a proper balancing, on a case-by-case basis, of these limitations against the corresponding benefits of such service in particular circumstances.

    The comment also cites to a case, Rio Props., Inc. v. Rio In'tl Interlink, 284 F.3d 1007 (9th Cir. 2002), which is also to be found on the 9th Circuit's opinion site, here.  It's an easy read.  While that opinion notes that e-mail as a means of service of process can be constitutionally acceptable, it also states:  "We note, however, that, except for the provisions recently introduced into Rule 5(b), email service is not available absent a Rule 4(f)(3) court decree."

    In other words, if the bank did not get a court order authorizing service by e-mail, they'd have failed to effect service of process.  

    Now, as to orders to show cause, while the principles of notice and opportunity to be heard are the same, the procedure's a little different, because the rules (particularly Rule 65) do permit entry of an order such as this without notice, i.e., ex parte.  But, in those cases, Rule 65(d)(2) limits its binding effect only to the parties "...who receive actual notice of it by personal service or otherwise."

    The problem here for the plaintiff being it seems an open question whether they need a separate order to serve via e-mail when proceeding under Rule 65, as opposed to under Rule 4 (where it's clear they do).

    But, going back to the plaintiff's "sharp practice" I criticized, the amount of time they gave Wikileaks (a couple hours), does not seem to me to be sufficient.  My Rules book tells me that in Granny Goose Foods v. Brotherhood of Teamsters Local 70, 415 U.S. 423, 433 n.7 (1974), the Supreme Court held that same-day notice of a preliminary injunction was inadequate under Rule 65 (which is probably why the plaintiff's lawyers here styled it as a "permanent injunction").  While circuits appear to differ, the consensus seems that at least three days notice of the hearing would be required.  

    And, I'm dubious about whether the specificity of the "irreparable harm" alleged (needed, per Rule, to support an ex parte order) is sufficient.

    So, if you're thoroughly confused about procedure as opposed to the wrongness of the order, don't worry.  This is going to take some time, a lot of lawyer effort and no small amount of arguing, in and out of court, to resolve.  And it will likely set some precedent, too.


    scribe, i understand (kind of) (none / 0) (#8)
    by cpinva on Thu Feb 21, 2008 at 10:25:18 AM EST
    the various distinctions you've drawn. however, i thought precedent had already been set in prior restraint cases by the SCt., in the pentagon papers case. wouldn't this judge have to know his order would almost automatically be reversed on appeal?

    given the pentagon papers, it seems that this judge went out on his own little tangent, ignoring precedence altogether, in issuing this order. is the difference between the two cases that one (pentagon papers)involved the govt attempting to stop publication and the present case involves two private parties?


    You're right, to a point, CP (5.00 / 1) (#9)
    by scribe on Thu Feb 21, 2008 at 01:26:33 PM EST
    I did not address the First Amendment issues (which are important) for a good reason.

    Protecting (through injunction) against the disclosure of trade secrets and confidential business information is one of the areas where speech can be and often is muzzled.  Remember, Wikileaks is a private entity, the bank is a private entity, and Dynadot is a private entity.  As among private entities, courts have little hesitation about enjoining publication.  This is as opposed to the Pentagon Papers case, where it was the government seeking to enjoin the newspaper.  The broad-brush synopsis is that "when the government is seeking a prior restraint injunction, the First Amendment blocks it but when it's all between private parties, the Constitution only has marginal relevance, if any."

    Factor into that equation the fact that the bank may be under legal duties - in Switzerland and/or the Caymans - to not disclose certain species of information which are (or are believed to be) in the documents posted on the site.  Some Euro countries won't allow the publication of criminal defendants' names or images to protect them and their privacy against ... shame, retribution, whatever.  But, it's their law.  Or that the bank might be obligated under those countries' laws to actively try to suppress disclosures of this allegedly confidential information.  Remember -there's no First Amendment in Europe.

    Go back to American law, and consider the hypothetical:  A is a financial printer, B is an investment bank, C is the bank's client.  C is preparing a business deal  in which B is its banker and is using the services of A.  The information C and B are using in this deal is considered by C to be its trade secret.  B becomes aware of information which indicates A is going to publish to the world the information B and C have given A to print up in furtherance of C's deal.  A won't return phone calls from B or C.  Can B or C get an injunction against A disseminating the information?  

    Yes, because C's interests (and derivatively, B's) would suffer irreparable harm if its business deal was disclosed to the world prior to the time it wants to disclose it.

    In this computerized world where everything can be sent at the click of a mouse, can the injunction include cutting A's internet access at the source?

    Yes, because the same irreparable harm from disclosure can occur through mouse click, indeed far more easily than it would were A to be handing out paper copies of C's deal on a streetcorner.

    But, as to any injunctive relief, the relief must be tailored to be as minimal as is necessary to achieve the ends.  Blanket injunctions are not the answer, and the injunction in this case seems to me to be overly broad, particularly given the dismissal of Dynadot from the case.

    That's what we have here.  While most everyone is looking at the First Amendment and prior restraint angles, I think the procedural angle is a better argument for Wikileaks.  Its rights to procedural due process - notice, an opportunity to be heard and defend, and to a narrowly tailored injunction (assuming one would be granted) - were trampled by cutting it off at the source and then locking in the injunction by dismissing Dynadot.

    The First Amendment argument is a lot closer of a question than most people think.


    Maybe this is the internet version of (none / 0) (#3)
    by reynwrap582 on Thu Feb 21, 2008 at 12:17:23 AM EST
    "Free Speech Zones"...  We don't abridge your speech, we just make sure it's harder for people to see.

    Will it be a cleansing or witch-hunt in '09 (none / 0) (#4)
    by Arabiflora on Thu Feb 21, 2008 at 12:34:33 AM EST
    The thorough politicization of DoJ, its infiltration with young rightwing tools, has to be addressed by the next president, whether HRC or BHO. The DoJ case is the poster-child, but similar scrutiny of appointees or hires to Commerce, Ag, DoD, HHS, DoE, etc. would seem to be in order.

    Any ideas on a) whether either dem candidate has been asked about a housecleaning (and if so, links appreciated); and b) How to proceed in such a needed process without setting a dangerous political precedent.

    I have no doubt that the cancerous and corrupt roots of the present administration have crept deep into the marrow of our government. My question is, how to cure the patient without killing her?

    I'm a little more concerned about (none / 0) (#5)
    by blogtopus on Thu Feb 21, 2008 at 01:09:35 AM EST
    the fact that non-digital tvs will not be working properly in a year. How many people will this mess up? I'm of the belief that TV is a pretty heinous mis-informer, but at least some of the time they get it right.

    It seems like we keep losing the most basic services in exchange for 'better' ones that need money to maintain.

    Lulz (none / 0) (#6)
    by chemoelectric on Thu Feb 21, 2008 at 01:22:41 AM EST
    The judge not only did the wrong thing, but he also did it lamely. That was worth a lol.

    I find it instructive (none / 0) (#10)
    by jimakaPPJ on Fri Feb 22, 2008 at 08:57:30 AM EST
    that this post shows 9 comments while any post about  Hillary and/or Obama draws a couple of hundred.

    I think it clearly frames the lack of concern that many have regarding our freedoms unless Bush's name can be tied to it.

    That's one of the reasons (none / 0) (#11)
    by scribe on Fri Feb 22, 2008 at 01:34:33 PM EST
    (another being that pesky thing called work eating up blogging time) that I've dialed back on writing diaries.  I wind up spending an hour - or two - writing a diary and posting it, after an hour or six thinking about it, maybe, and then maybe one comment.

    I don't know how many people actually go to the diaries and read without commenting (TL might), but it's still disheartening.  When one sees a post which can be summarized as "my favorite candidate Good" (not much need for summarizin', either) and then watch comments being filled and closed in a couple hours, one can only praise the genius of Mike Judge and Idiocracy and remember that those commenters are the people schooled and conditioned to make, hold, and argue their passionate distinctions between various subspecies of cheeseburgers.