Updated, Wednesday, March 5, 11:31 a.m.
A federal judge's decision last week to reverse his own ruling and lift what he had declared was a “permanent” injunction shutting the Wikileaks.org site for posting sensitive bank documents has been hailed by civil liberties lawyers as an important benchmark in applying First Amendment protections to such sites.
Paul Levy, a Public Citizen attorney who joined a bevy of free-speech advocates in bombarding U.S. District Court Judge Jeffrey White with amicus briefs opposing his Feb. 15 injunction shutting Wikileaks, told SCMagazineUS.com that “neither the judge nor the plaintiff” anticipated the outcry over the ruling.
In his February 28 ruling lifting his own injunction, Judge White conceded that the original request of Julius Baer Bank and Trust Co. that he close down the Wikileaks site had raised serious First Amendment issues and might constitute unjustified prior restraint.
According to Levy, the federal judge clearly was swayed by the public criticism of his initial order.
“It is not possible to overstate the impact of the tremendous outpouring of public disapproval that followed the so-called permanent injunction,” he said.
“Judges do read the newspapers (and other media outlets). At the outset of the hearing, and throughout the hearing, it was clear that the judge was responding in part to the public criticism of what he had done and to what he felt were public misperceptions of how he had come to sign the orders that he signed.”
The judge also had to concede in his February 28 ruling that the U.S. District Court in San Francisco did not have proper jurisdiction over the matter when the injunction shutting Wikileaks' IP address was issued last month, Levy told SCMagazineUS.com.
Public Citizen, a consumer rights organization, was joined by the American Civil Liberties Union and several other free-speech advocates in filing briefs opposing the Feb. 15 injunction.
Levy also criticized the role of Dynadot, Wikileaks' domain-name registrar, in acquiescing in the original injunction and “locking” Wikileaks' primary IP address.
“Dynadot really embarrassed itself,” he said.
In a posting on the Public Citizen website, Levy said that the bank's motion for an injunction shutting Wikileaks was submitted to the judge “with the agreement of Dynadot.”
“So far as I can tell, Dynadot simply rolled over, apparently to avoid having to defend against the relief that the bank was seeking. And that, to my mind, poses a significant consumer issue concerning the extent to which internet providers protect their customers' rights, and the considerations for consumers in choosing their internet providers,” Levy said in his posting.
Dynadot president Todd Han did not respond at presstime to a request for comment. "This case raises First Amendment issues that are for the Courts to decide, not my client, Dynadot. The only agreement by Dynadot was to comply with the Court's previous order to preserve evidence, including preventing Wikileaks from transferring its domain name to another registrar and from changing its account settings - essentially, to preserve the status quo. Dynadot did not agree to remove the name server settings for wikileaks.org or to produce any information. This was requested by Julius Baer and granted by the Court," according to Murai's statement. "It was explained to the Court that Dynadot only provides domain name registration services to Wikileaks. Dynadot is not the DNS provider nor is it the web host provider that maintains the content of wikileaks.org," said Han. "Our company does not take a position on the merits of this litigation. However, if Julius Baer is concerned with the posting of its confidential documents on the wikileaks.org web site, it could have sought a more narrow remedy than seeking to have the entire wikileaks.org web site shut down." The Wikileaks site invites people to post leaked materials with the goal of discouraging "unethical behavior" by corporations and governments. The site previously has posted what purported to be the rules of engagement for American troops in Iraq and a military manual for the Guantanemo Bay detention center, among other sensitive disclosures.
On Wednesday, Dynadot's press office sent SCMagazineUS.com statements from the company's attorney, Garret D. Murai, and in-house legal counsel, Kathryn Chow Han.
Julius Baer Bank and Trust, a Cayman Islands bank, claimed in its court papers that a “disgruntled ex-employee” had provided stolen documents to Wikileaks in violation of a confidentiality agreement and banking laws. In its website posting, Wikileaks described the bank documents as allegedly revealing secret trust structures used for asset hiding, money laundering and tax evasion.
