Injunction against website is lifted
Saying he may have violated free speech rights, a federal judge reversed field Friday and lifted an injunction that had effectively shut down a website that publishes documents alleging corporate and government misdeeds.
U.S. District Judge Jeffrey S. White ruled in response to a flurry of motions filed by a coalition of media and public interest organizations that urged him to reconsider orders he issued in mid-February against Wikileaks.org and Dynadot of San Mateo, Wikileaks’ domain name registrar.
The judge acknowledged in court Friday that there were serious questions about whether his original order represented a “possible violation of the 1st Amendment.” White said he was making no definitive finding on that issue now.
Later in the day, the judge issued a formal written ruling, stating that the groups had raised many issues that were not considered at the original hearing. He also said the injunction had triggered “exactly the opposite effect” of that intended: generating mirror sites duplicating Wikileaks’ content and fanning media interest that only “increased public attention to the fact that such information was readily available online.”
“This was a home run for the 1st Amendment,” said Matt Zimmerman, attorney with the Electronic Frontier Foundation, a civil rights group focused on Internet liberties. “The judge understood the serious 1st Amendment concerns and recognized the reality that in dealing with the Internet, it’s difficult for him to do anything of consequence.”
William Briggs, attorney for the Zurich-based bank, Julius Baer & Co., that sought the injunction, said he was troubled by the judge’s action.
“It’s a shame the judge abdicated judicial authority to the Internet,” Briggs said. “This bodes ill for the American public [because] things they consider to be private are now free rein if anyone on the Internet gets ahold of them.”
White originally acted in mid-February in response to Julius Baer’s lawsuit alleging that a disgruntled ex-employee had posted, on the Wikileaks site, internal documents alleging money-laundering and tax evasion schemes at the bank’s Cayman Islands branch. The former Julius Baer employee was not named as a defendant in this suit. He was detained briefly in Switzerland in 2005 but never charged with a crime.
Wikileaks.org urges visitors to its website to post leaked documents as part of a campaign against “unethical behavior” by corporations and government agencies. The organization has stated on the site that it has posted 1.2 million documents over the last several years, among them an operations manual for the controversial U.S. prison at Guantanamo Bay, Cuba.
On Friday, Briggs and bank attorney Evan Spiegel urged the judge to extend his original injunction, saying he should protect the privacy rights of customers whose account information had been posted.
But lawyers for several news organizations, including the Los Angeles Times, said the judge’s earlier order directing Dynadot to lock down the website was too sweeping -- the equivalent of shutting down an entire newspaper on account of one controversial article.
They argued that the order had violated a bedrock U.S. legal doctrine known as prior restraint, which prohibits the government from barring publication of stories or material before they go to print -- or, in the case of the Internet, before they are posted.
The groups cited the 1971 Pentagon Papers case, in which the Supreme Court rejected the Nixon administration’s bid to bar publication of a secret government history of the Vietnam War.
San Francisco attorney Thomas Burke, representing the Reporters Committee for Freedom of the Press and several other media groups, said there was no legal precedent for prior restraint and asserted that the proper remedy for the bank was to sue for damages.
Bank attorney Briggs disagreed, citing a California case involving medical records. Briggs said individual bank customers risked serious financial harm and identity theft as a result of the documents being posted on the Internet. He also asserted that the information was not newsworthy.
The judge clearly had doubts about that argument. “How can the court make the determination that this is not newsworthy?” White asked.
He also acknowledged, in response to arguments from attorney Roger Myers, that his earlier order did not come to grips with a “fundamental aspect of the Internet.”
“Documents can move around on the Internet,” Myers said. “That’s the reality of the way the Internet works.”
“We live in a very difficult world these days,” the judge conceded. “To the court’s way of thinking, there is a definite disconnect between the evolution of constitutional jurisprudence and modern technology. We live in an age where people can do good things and terrible things without accountability in a court of law.”
White scheduled further hearings in the case but urged the bank’s lawyers to reconsider whether they wanted to move forward. Briggs said he would keep the advice in mind.