Category Archives: Law: Free Speech

Updated docket

Notable filings include:

• Application by EFF and others to intervene as defendants or to appear as amici
• Motion by EFF and others to intervene, with proposed Answer and Counterclaims in Intervention

Thanks to James S. Tyre for making these available.

Yesterday in Wikileaks: One Injunction Or Two? I explained why I was somewhat dubious about the theory that the second order in the Wikileaks case amended the first. Now it seems that the place where I found that theory, the Citizens Media Law Project, may be coming around to my point of view. In Making Sense of the Wikileaks Fiasco: Prior Restraints in the Internet Age, David Ardia writes,

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.

So, maybe we have a consensus?

Thanks to commentator 09F9 1102, a link to Media Statement on Behalf of Dynadot in re: Wikileaks Litigation:

The following constitutes Dynadot’s response to the Feb. 15 court order in the case of Bank Julius Baer & Co., Ltd v. Wikileaks, et al., which is pending in the United States District Court for the Northern District of California in San Francisco.

“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.”

“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,” explains Kathryn Chow Han, in-house legal counsel for Dynadot. “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.”

There seems to be real and continuing confusion about what exactly happened in the wikileaks case. (Translation: I'm confused, and so are some other people.) I've had a look at the PACER records — the official online docket — for the case, and I still am not as sure as I would like.

Here's what we know for sure. The court issued its injunction against Dynadot, an order PACER describes as “ORDER by Judge Jeffrey S. White granting 5 Motion for Preliminary Injunction as to defendant DYNADOT LLC (jjo, COURT STAFF) (Filed on 2/15/2008) (Entered: 02/15/2008).”

The next entry on the docket is what I previously described as the “gag order”, and which PACER captions as “ORDER GRANTING AMENDED TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION. Signed by Judge Jeffrey S. White on 2/15/08. (jjo, COURT STAFF) (Filed on 2/15/2008) (Entered: 02/15/2008)”.

Julius Baer Bank and Trust v. Wikileaks page at the Citizen Media Law Project, describes the sequence of events as follows,

On February 15, 2008, the court issued what it captioned as an “Order Granting Permanent Injunction.” This order, which appears to be the result of a stipulation between the plaintiffs and Dynadot, Wikileaks' domain name registrar and web host, required that Dynadot immediately disable the entire wikileaks.org domain name and account and remove all DNS hosting records.

Later that same day, the court issued an Amended Temporary Restraining Order that drops the requirement that Dynadot disable the entire Wikileaks.org domain. Among other things, the amended order enjoins the defendants from “displaying, posting, publishing, distributing, or linking to … all documents and information originating from [the plaintiffs' banks] which are internal non-public company documents and/or which contains private client or customer bank records.”

From the official sources, I can't tell you for sure that this is wrong, but I can tell you why it doesn't seem all that likely: (1) the first order is a preliminary injunction, the second only a TRO; (2) the second order nowhere mentions that it is either amending or vacating the first order, which you would expect if it were; (3) the two orders are largely addressed to different parties and are about different things (yes, Dynadot is mentioned in the second one, but only as part of a large group); (4) the first order contemplates an order being drafted for Dynadot being dismissed with prejudice, the second doesn't.

Now, if it's true that if these are two separate orders, that doesn't explain why the second one is captioned an “amended” TRO. What's it amending? Either an earlier order, or an earlier draft order, I presume, but I haven't figured out which.

Wikilleaks's account of the correspondence between it and Bank Julius Bear. Notable in this account is the odd failure of the demand letter to say what documents they wanted taken down.

Copy of the motion for injunction filed by Julius Baer in California via TPM Muckraker.

Also, note that I fixed the link in my previous post to now point to a locally-hosted copy of the California gag order.

Federal District Court Judge Jeffrey S. White of the Northern District of California has issued a pair of (unprecedented?) ex parte orders in a case brought by Bank Julius Bear against Wikileaks.org. Because there are two separate orders, much of the early reporting was a bit confused — indeed I got confused, which is why I'm posting this substantially amended post and taking down my older, not-very-accurate posting.

One order requires an ISP, Dynadot, to take down all DNS records pertaining to the wikileaks.org site.

“Dynadot shall 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.”

I presume Dynadot was their registrar as this had the effect of making the wikileaks.org domain inoperative. (The only vaguely similar case I know of is when wab.com was surrendered to the feds as part of a plea deal in a criminal federal copyright infringement case — but as the government isn't the plaintiff here that's not very similar.)

This isn't a classic prior restraint on speech since it reaches the registrar not the speaker — but it's close enough to stopping the delivery trucks on a newspaper that I think this aspect of the decision is a cause for some First Amendment concern. The IP numbers for the site still work, though. Try 88.80.13.160.

The second order is a much broader gag order [corrected link] that enjoins everyone sued by the plaintiffs — wikileaks, everyone connected by the parties, ten John Does, their ISP, lawyers, and anyone working “in concert” with them, and “all others who receive notice of this order” (!) and orders them not to do any of the following,

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 JB Property … and any information or data contained therein, including on [listed websites or other websites they control]

Leaving aside the sweep of the order — on what theory does this court have jurisdiction of everyone who learns of the order? — this seems like a classic prior restraint and is thus presumptively unconstitutional. Whether any of the very limited exceptions might apply is hard to tell from the documents available, but I'm pretty skeptical. Assuming that the information was in fact stolen, one has to admit that the case law relating to the retention of stolen documents is confusing: on the one hand the law clearly allows the owner to demand their return. On the other hand, as far as I know, the very strong presumption against prior restraints on publication has not been overcome as regards to parties who receive the information from a person other than the thief. Note, however, that even after the Progressive case, the law on prior restraint is only that it is a very very very high bar — not foreclosed utterly.

The orders in this case came in the context of an ex parte hearing on a preliminary and emergency injunctive request from Bank Julius Baer of Switzerland which alleges that wikileaks is publishing secret bank information.

According to Wikinews, 'Wikileaks.org' taken off line in many areas after fire, court injunction,

The documents allegedly reveal secret Julius Baer trust structures used for asset hiding, money laundering and tax evasion. The bank alleges the documents were disclosed to Wikileaks by offshore banking whistleblower and former Vice President the Cayman Island's operation, Rudolf Elmer.

More information about the underlying dispute at cryptome.org and this wikileaks mirror site.