Copyright Law

Making Sense of the Wikileaks Fiasco: Prior Restraints in the Internet Age

By David Ardia

Yesterday, I reported that a federal judge in San Francisco had issued a stunningly broad injunction that brought down Wikileaks.org, a site that is developing what it describes as an "uncensorable Wikipedia for untraceable mass document leaking and analysis." (I'll let the prescience of that statement sink in on its own.)

The plaintiffs in the case, a Cayman Islands bank and its Swiss parent company, probably thought they could slip into court in California right before a holiday weekend and silently silence a critic that had made them and their customers look bad. So much for that plan.

First, the banks overreached. They worked out what appears to be a sweetheart deal with Wikileaks' domain name registrar, Dynadot. Even though Dynadot appears to bear no liability for the material at issue, the banks added Dynadot as a defendant in the case. No doubt thinking they had come up with a legal "silver bullet," the banks and Dynadot signed a joint stipulation in which Dynadot agreed to, among other things, "lock" and "disable the wikileaks.org domain name" in exchange for being dismissed from the case (a case in which, it appears, Dynadot bore no liability). To give their stipulation the force of law, the banks slipped an order to the judge, which he promptly signed.

Second, the banks -- and the judge -- failed to read the First Amendment. If they had, they would have known that even narrowly tailored prior restraints on speech are constitutionally suspect. See Nebraska Press Assn. v. Stuart, 427 U.S. 539, 559 (1976) (cautioning that "prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights"). Instead, the judge did the unthinkable: he issued an order that is so broad I haven't been able to find a single example in the U.S. that comes close: he ordered the complete shutdown of the Wikileaks website. He did this not by ordering that the parties shut off access to the offending documents (that came in a second order), but by ordering that Dynadot 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.

But the judge didn't just stop there. He issued a second order (again without giving Wikileaks an opportunity to defend itself) in which he ordered all of the parties, their ISP, lawyers, and anyone else working "in concert" with them, and "all others who receive notice of this order" to refrain from

displaying, posting, publishing, distributing, linking to and/or otherwise providing any information for the access or other dissemination of copies and/or images of the [banks'] Property . . . and any information or data contained therein, including on [listed websites or other websites they control.]

This second order is actually captioned as an "Amended Temporary Restraining Order" which led me to believe yesterday that the court had amended its first order that required the take down of the Wikileaks site. I've now come to realize that the judge intended no such amendment. I guess he felt it wasn't enough to shutdown the Wikileaks website, he'd add a second dose of judicial oversight to make sure things really went in the banks favor.

Which brings us to the biggest lesson of the day. Neither the banks nor the judge were able to effectively cutoff access to the documents at issue. While Wikileaks' U.S.-hosted site is still in limbo, users can access the material through its many mirror sites, including http://www.wikileaks.be, http://wikileaks.org.uk, http://wikileaks.cx, and http://wikileaks.in.

And the publicity has been astonishing, with the New York Times, Associated Press, and many others covering this story. I'll bet the hits on the Wikileaks mirror sites have been through the roof.

So much for the best laid plans.

(We'll include any future developments in the case in the CMLP's database entry: Julius Baer Bank and Trust v. Wikileaks.)

Full post as published by Citizen Media Law Project on February 19, 2008 (boomark / email).