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Wikileaks back on the Web

Case that riled privacy advocates turns on unrelated technicalities

By Jaikumar Vijayan

In a move sure to be welcomed by privacy and civil rights advocates, a California District Court judge on Friday lifted a previous permanent injunction that he had issued two weeks ago to disable the controversial Wikileaks.org whistleblower Web site.

Judge Jeffrey White of the U.S. District Court for the Northern District of California in San Francisco also declined to extend a temporary restraining order he had issued on Jan 15 against Wikileaks. That order prohibited Wikileaks from displaying, posting, publishing, or distributing material that a Swiss bank, which had filed a lawsuit against Wikileaks, had claimed were illegally obtained and defamatory.

The wikileaks.org domain was reactivated today as a result of the decision.

Judge White cited two main reasons for rescinding his previous injunctions. In a seven-page ruling, the judge noted that both the plaintiff in the case and the owner of the Wikileaks.org domain name were foreign entities and therefore outside the court’s jurisdiction. Although there is no firm evidence of the citizenship of the owner of the wikileaks.org domain name, “counsel for the [owner] represented that the owner of the domain name wikileaks.org is a citizen of Australia and a resident of Kenya,” the judge noted in his ruling. As a result the “Court is concerned that it may well lack subject matter jurisdiction over this matter in its entirety,” Judge White noted in his ruling.

He also noted that the injunctions he had issued asking Wikileaks’ domain registrar Dynadot to disable the domain name was totally pointless. “The record currently before the Court indicates that even the broad injunction issued as to Dynadot had exactly the opposite effect as was intended,” the judge noted in his ruling. Not only did the disputed material continue to be available via numerous mirror sites, the media attention generated by the case ensured that more people knew about the availability of the information on the Internet than before, he said.

“The Court is not convinced that Plaintiffs have made an adequate showing that any restraining injunction in this case would serve its intended purpose,” Judge White said. “In addition, there is evidence in the record that “the cat is out of the bag” and the issuance of an injunction would therefore be ineffective to protect the professed privacy rights of the bank’s clients,” he said.

The ruling comes two weeks after Judge White issued two injunctions against Wikileaks. The injunctions were in response to a lawsuit filed by the Julius Baer Group, a Swiss bank that, according to documents on Wikileaks, was involved in offshore money laundering and tax evasion in the Cayman Islands for customers in several countries, including the U.S.

Wikileaks claimed the documents had been leaked by a bank employee. In its complaint, the Swiss bank claimed that Wikileaks published hundreds of illegally obtained documents and confidential and copyrighted information belonging to the bank. The bank sued both Wikileaks and its domain registrar Dynadot.

In response, White issued a permanent injunction ordering Dynadot to immediately disable the wikileaks.org domain name and lock it to prevent the domain from being transferred to another registrar. The injunction also required Dynadot to immediately remove all DNS hosting records for the wikileaks.org domain name. The court asked Dynadot to prevent the domain name from resolving to the Wikileaks Web site or any other Web site or server “other than a blank park page.”

The judge also issued a temporary restraining order that forbade Wikileaks from displaying, posting, publishing, or distributing any material pertaining to the bank on any site that it directly owned or over which it had any control. The order instructed Wikileaks to ensure that all of the bank’s information was removed from all Web sites it owned or controlled, to disable links to the material on such sites, and to provide the court with proof that it had complied with the orders. The judge’s order even enjoined everyone who read the order or received notice of it from publishing or even linking to the documents.

The rulings drew scathing criticism from privacy and civil rights groups that saw it as a flagrant violation of First Amendment rights. Several felt the court had overreacted in ordering the entire domain shut down, just because a relatively small number of documents it hosted were being disputed.

Earlier this week, several privacy and civil rights advocates announced their support for Wikileaks in the case. The Electronic Frontier Foundation and the American Civil Liberties Union (ACLU) filed a motion seeking the court’s permission to formally intervene in the case.

Expressing similar support was Harvard Law School’s Berkman Center for Internet & Society’s Citizen Media Law Project (CMLP). Earlier this week, the center filed a brief opposing the court’s injunctions against Wikileaks and its domain registrar Dynadot LLC. The amici curiae (friends of the court) brief, which was developed in collaboration with several media and public-interest organizations, asked the court to take back its decision and cited First Amendment concerns.

A statement issued by the EFF today expressed satisfaction at Judge White’s decision. “We’re very pleased that Judge White recognized the serious constitutional concerns raised by his earlier orders,” EFF senior staff attorney Matt Zimmerman was quoted as saying in the statement.

“Attempting to interfere with the operation of an entire website because you have a dispute over some of its content is never the right approach. Disabling access to an Internet domain in an effort to prevent the world from accessing a handful of widely-discussed documents is not only unconstitutional — it simply won’t work.”

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