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Take Down Order by California Court Raises Issues of Censorship and Free Speech

Enrico Schaefer

The internet is abuzz with commentary about a recent case in the United States District Court for the Northern District of California concerning the web site wikileaks.org, a "website dedicated to leaking documents that are "anonymous, untraceable, uncensorable." Time Magazine allegedly described the site by stating that it "could become as important a journalistic tool as the Freedom of Information Act." The case certainly raises important issues concerning First Amendment Rights, censorship and freedom of speech.

The case involves the alleged posting of private internal documents of Bank Julius Baer & Co and its bank customers by a whistle blower reporting that a bank's data had been compromised. Certain alleged private documents were allegedly posted on the wikileaks.org web site. Plaintiff Bank Julius Baer alleged that the posted documents were "internal nonpublic company documents and/or which contains private client or customer bank records and/or identifies client or customer names, data, account records and/or bank account numbers" and sought to have the documents removed from the site.

Two injunction orders were issued, one against the Registrar Dynadot (which stipulated to the Order) requiring it to "immediately clear and remove all DNS hosting records for the wikileaks.org domain name and prevent the domain name from resolving to the wikileaks.org website or any other website or server other than a blank park page, until further order of this Court."

The second order was against wikileaks and its owners/operators essentially ordering it to remove all allegedly private bank documents posted on its site.

For more analysis and links to court documents, click "Wikileaks.org Subjected to Injunction Requiring Documents To Be Removed From Web Site." It is unclear whether those documents have been removed as there are several pages devoted to Plaintiff bank on the site which remain live.

By Enrico Schaefer, Attorney & Advisor: Protecting International Business Interests
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Re: Take Down Order by California Court Raises Issues of Censorship and Free Speech Enrico Schaefer  –  Feb 20, 2008 9:43 AM PDT

Two injunction orders were issued, one against the Registrar Dynadot (which stipulated to the Order)

Although the Permanent Injunction Order makes it appear that Dynadot stipulated to that order, it is now clear that they had stipulated to a much lighter version of the order which would not have shut down the site.  But neither did Dynadot do anything to stop the modified order reuiring Dynadot to "clear and remove all DNS hosting records for the wikileaks.org domain name" from going into effect.

The attorney for Dynadot Garret D. Murai issued this statement in the response to controversy surrounding its role in the matter:

"This case raises First Amendment issues that are for the Courts to decide, not my client, Dynadot," stated Garret D. Murai of Wendel, Rosen, Black & Dean, LLP, who represents 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."

Does a registrar have any responsibility to protect its customers? It appears Dynadot simply wanted out of the proceeding which was no doubt going to cost significant legal dollars.

Re: Take Down Order by California Court Raises Issues of Censorship and Free Speech Matthew Elvey  –  Feb 29, 2008 9:03 AM PDT

Just submitted to David Ulevitch's opendns.org: 

Please make wikileaks.org work for your customers, and issue a press release about doing so!
See New York Times article
and/or http://88.80.13.160/wiki/Wikileaks

David, I hope you'll see this and respond here with your thoughts.

Re: Take Down Order by California Court Raises Issues of Censorship and Free Speech Enrico Schaefer  –  Mar 01, 2008 7:24 AM PDT

[update 030108 - Judge Reverses Prior Ruling and Dissolves Injunction]

Read more about wikileaks turn of fortune.

This is a great example of how the US justice system can, in fact, work. The Judge got it wrong, was provided new information and argument, and corrected course.  Of course, they key was that the EFF and other organizations stepped into the frey.  Without that advocacy, it is unclear whether a coarse correction would have occurred.

And one can only wonder whether the public outcry in the on-line community helped educate the Judge as well. It just goes to prove, justice is best served up in the open light of day where everyone can see what is going on.

This development is great news for the Constitution, Free Speech and the First Amendment.

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