Re: Judge allows Wikileaks site to re-open

[David Farber <dave () farber net>]

________________________________________
From: Paul Levy [plevy () citizen org]
Sent: Sunday, March 02, 2008 8:00 AM
To: David Farber
Subject: Re: [IP] Judge allows Wikileaks site to re-open

The end of the story forwarded below indicated that wikileaks was not online, and that it remained unclear whether that 
particular name would start functioning again.  Wikileaks.org IS functioning again.  The reason it did not function 
immediately after the judge's oral ruling is that the domain name was shuttered by a written injunction, and upon a 
request for clarification from the lawyer for the domain name registrar (Dynadot), the judge said that nothing should 
change until there was a written order vacating the injunction.  FWIW, Wikileaks now includes the first installment of 
an analysis by Rudolph Elmer -- the leaker -- of what he thinks the leaked documents show.  
http://wikileaks.org/wiki/Bank_Julius_Baer:_Grand_Larceny_via_Grand_Cayman.

A few observations from one of the many who were involved in the effort to get Judge White’s injunctions rescinded.   
First of all, it is not possible to understate the impact of the tremendous outpouring of public disapproval that 
followed the so-called "permanent injunction" issued pursuant to an agreement between Dynadot on this outcome.  Judges 
DO read the newspapers (and other media outlets).  At the outset of the hearing, and throughout the hearing, it was 
clear that the judge was responding in part to the public criticism of what he had done and to what he felt were public 
misperceptions of how he had come to sign the orders that he signed.  Indications of this concern also appear in his 
brief written opinion.  The judge was extremely defensive at the beginning of the hearing, although as the hearing went 
on he seemed to relax somewhat, perhaps because he was formulating his decision and was comfortable with what he was 
getting ready to do.  For example, early in the hearing many of those in attendance reacted with laughter to something 
that was said by one of the lawyers, and the judge reacted sharply, saying that he would not tolerate such outbursts.  
Later in the hearing, there was more laughter and the judge did not seem to mind (on one such occasion it was the 
audience laughing at a joke by the judge, which I guess is always acceptable even in the strictest courtroom, but that 
was not the only time).

Second, there was a terrific effort of the lawyers who argued the case (and others who only collaborated on the 
briefs).  I was honored to be a part of this effort.  There were three different briefs partly because the short time 
allowed did not permit enough negotiation to put everything into one brief, partly because of a fifteen page limit that 
can be lifted but only with the judge’s consent, partly because everybody could not agree which issues should be 
addressed and whether to just be a friend of the court or intervene as a party defendant in the case, and maybe also 
partly for institutional reasons. Argument was presented by five different lawyers who were on the briefs  – Thomas 
Burke for the media amicus coalition, Ann Brick, Kurt Opsahl and Steve Mayer for the EFF/ACLU intervenors, and me for 
the Public Citizen intervenors.  (I’ll say more about Dynadot’s lawyer in a moment).  The judge framed the marathon 
four-hour argument by issuing a series of questions to be addressed, and this group coordinated in advance who would 
take the lead role in responding to the various questions, although in practice there were often multiple lawyers from 
the free speech side.  Although the case was so complicated that each of us felt free to follow up on each other as 
things were said by the judge (and the plaintiffs’ lawyers), and the discussion moved around, I give the judge great 
credit for managing a difficult session.  In addition, Roger Myers and Joshua Kolton also made important contributions 
to the argument on behalf of their individual clients (the registrant of the wikileaks.org domain name, and a Wikileaks 
writer who lives in California), both addressing some of the specific questions as well as bringing home for the judge 
the personal impact of his orders on their individual clients.  We at Public Citizen tend not to be fans of litigation 
by committee, but this collaboration worked well.  Finally, a special tribute is owed to Peter Scheer of the California 
First Amendment Coalition for his persistence both in publicizing the outrage and in recruiting lawyers to help with 
the response.

I have commented elsewhere on the disgraceful behavior Dynadot in just rolling over and agreeing to the permanent 
injunction.  http://pubcit.typepad.com/clpblog/2008/02/be-careful-in-c.html.  Dynadot’s lawyer, having been  directed 
by the judge to attend the hearing, claimed that the company hadn’t really agreed to the injunction shutting down the 
web site.  The judge was none to pleased with this effort to back out, and reminded Dynadot that it got a package deal 
– it got out of the case in return for the injunction.  Two questions said it all – Did you not read the injunction 
before it was submitted with your stipulated agreement?  Did you ever say you were opposed to the injunction?  Dynadot 
did not oppose the injunction at the hearing, although it answered the judge’s questions by asserting its immunity 
under section 230.  Hopefully, however, Dynadot will be getting pro bono representation from lawyers who are ready to 
defend it forcefully going forward.  In fact, I’d be surprised if Dynadot does not file an anti-SLAPP motion if the 
Bank does not dismiss the case promptly.

Paul Alan Levy
Public Citizen Litigation Group
1600 - 20th Street, N.W.
Washington, D.C. 20009
(202) 588-1000
http://www.citizen.org/litigation
> > > David Farber <dave () farber net> 03/01/08 4:28 PM >>>

________________________________________
From: David Bolduc [bolduc () austin rr com]
Sent: Saturday, March 01, 2008 11:17 AM
To: David Farber
Subject: Judge allows Wikileaks site to re-open

For IP, if you like, since the original story got dicussed at length ...

<http://news.yahoo.com/s/ap/20080301/ap_on_hi_te/wikileaks_shutdown>


Judge allows Wikileaks site to re-open

By SCOTT LINDLAW, Associated Press Writer

Fri Feb 29, 8:02 PM ET


SAN FRANCISCO - A federal judge who shuttered the renegade Web site 
Wikileaks.org<http://us.rd.yahoo.com/dailynews/ap/ap_on_hi_te/storytext/wikileaks_shutdown/26536063/SIG=10m1mh8la/*http://Wikileaks.org>
 reversed the decision Friday and allowed the site to re-open in the United States.

In mid-February, U.S. District Court Judge Jeffrey White issued an injunction against Wikileaks after the Zurich-based 
Bank Julius Baer accused the site of posting sensitive account information stolen by a disgruntled former employee.

White set off storms of protest among free-speech advocates and news media organizations when he ordered the disabling 
of the entire site rather than issuing a narrowly tailored order to remove the bank's documents.

On Friday, the judge dropped the injunction that took the site offline, citing First Amendment concerns and questions 
about legal jurisdiction.

At a court hearing in San Francisco, White said he had "serious questions" about whether the legal measures sought by 
the bank "would be constitutionally approriate" and whether they constituted prior restraint by the government. He also 
cited "possible violations of the First Amendment."

In addition, White said he questioned the "effectiveness" of blocking the site, an apparent reference to the fact that 
other Web sites quickly obtained and disseminated the information about the bank.

The judge recognized that "the genie is out of the bottle," said Matt Zimmerman, senior staff attorney at the 
Electronic Frontier Foundation, one of several organizations that filed briefs on the case. The Associated Press and 
the ACLU were also among them.

"The reality of the Internet makes it difficult for him to issue an order that will have any impact, given the fact 
that all the material is already out there," Zimmerman said.

The bank sued Wikileaks and the San Mateo company Dynadot, which provided the Web site's U.S. domain name after client 
information was posted.

Dynadot agreed to shut down the Web site in exchange for the bank removing it from the lawsuit.

The Wikileaks site claims to have posted 1.2 million leaked government and corporate documents that it says expose 
unethical behavior, including a 2003 operation manual for the U.S. prison at Guantanamo Bay, Cuba.

It wasn't clear whether the site would resume its operations. Hours after the judge ruled, 
Wikileaks.org<http://us.rd.yahoo.com/dailynews/ap/ap_on_hi_te/storytext/wikileaks_shutdown/26536063/SIG=10m1mh8la/*http://Wikileaks.org>
 was still not working.

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