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Wikileaks Is Spared a Shutdown As a Federal Judge Reverses Course:
How Broadly Will the First Amendment Protect A Website Inviting Leaks of Confidential Documents?


Wednesday, Mar. 05, 2008

An extremely significant case is pending before San Francisco-based U.S. District Judge Jeffrey White -- one that has tested, and likely will continue to test, the scope of First Amendment rights on the Internet.

The case involves, a website that describes itself as "developing an uncensorable Wikipedia for untraceable mass document leaking and analysis." Wikileaks further explains that "[o]ur primary interest is in exposing oppressive regimes in Asia, the former Soviet bloc, Sub-Saharan Africa and the Middle East, but we also expect to be of assistance to people of all regions who wish to reveal unethical behavior in their governments and corporations."

Judge White attracted a lot of press for first ordering Wikileaks and its domain name registrar, Dynadot, to disable its domain name, and then, after a full hearing, reversing himself, in light of the First Amendment issues that are implicated in the case.

Some have compared Wikileaks's situation in the case before Judge White with that of the New York Times in the "Pentagon Papers" case. The "Pentagon Papers" involved the Times's publication, in 1971, of a lengthy secret government history of the Vietnam War, leaked by former Defense and State Department official Daniel Ellsberg. The Supreme Court ultimately lifted an injunction against the Papers' publication on First Amendment grounds.

Is the comparison a valid one? And, what are the broader implications of this dispute?

In this column, Part One, of a two-part series, I'll review the facts of the case thus far, the federal court's rulings, and their implications. In Part Two, I'll assess the "Pentagon Papers" parallel.

The Plaintiff's Complaint, Wikileaks's Response to the Press, and the Judge's Initial Order

Earlier this month, a New York Times article described the basic facts of the case and Judge White's initial ruling in detail. The plaintiff is Julius Baer Bank and Trust, a Cayman Islands bank. The bank alleges that its documents ended up on Wikileaks because "a disgruntled ex-employee" stole them and released them, and thereby, it claims, violated a confidentiality agreement; it also says some of these documents are forged. (I discussed employee confidentiality agreements in this prior column.)

The bank also claims that not only the employee, but also Wikileaks, violated the law. Specifically, the bank says that, by hosting the documents, Wikileaks violated California law regarding unlawful and unfair business practices, interfered with the bank's confidentiality agreement with the employee, and interfered with the bank's prospective economic advantage.

Wikileaks, in a statement on its site, has said that the documents provide evidence of "asset hiding, money laundering and tax evasion" by the bank, and that it was within its First Amendment rights to host them on the site.

On February 15, Judge White issued an order purporting to shut down the site, and then another specifically requiring that the bank documents be de-posted. Despite Judge White's orders, however, the Wikileaks site remained accessible, as the Times article describes. So did its mirror sites, and so did a number of specific documents involving this particular bank.

After a Hearing and Briefing by Amici, Judge White Wisely Rescinds His Prior Orders

After the initial orders were issued, Judge White held a full hearing, on February 29, and issued an order rescinding his prior orders. The judge's order provides an explanation of why he initially ruled as he did: According to the court, Wikileaks and Dynadot were served with notice of their need to oppose the bank's motion for a preliminary injunction, and neither filed an opposition. In addition, while Dynadot appeared at a hearing on February 14, the day before the judge issued his initial orders, Wikileaks did not, and Dynadot agreed at the hearing to prevent access to Wikileaks's domain name.

I think many judges might well have raised concerns about the First Amendment implications here of their own accord at the February 14 hearing, even without Wikileaks's appearance. However, the judge's account of the prior proceedings does at least explain why he initially ruled as he did: Apparently, he thought that he was simply formalizing a consensual, temporary agreement between the only two parties to the case who had shown up in court.

Fortunately, however, a number of groups filed amicus curiae (friend-of-the- court) briefs before the February 29 hearing, and John Shipton, the Wikileaks domain name owner, joined in their arguments. (The amici, who also moved to intervene, were the Electronic Frontier Foundation (EFF), the American Civil Liberties Union (ACLU), the American Civil Liberties Union Foundation of Northern California, and the Project on Government Oversight (POGO).)

After conducting the hearing, Judge White rescinded his prior orders. Applying the classic preliminary injunction standard, he found that the bank had not shown it satisfied the standard - for several reasons. First, U.S. courts may lack jurisdiction, for the bank is a Cayman Islands bank; domain owner Shipton is a foreign citizen; and Dynadot and Wikileaks may not have sufficient California contacts. Second, there are important First Amendment questions at stake, and on the defendants's side. Third, the judge's prior orders had proved ineffective. Those orders had, ironically, led to even more dissemination of the documents at issue, which were maintained on foreign-based mirror sites and attracted far greater interest on the part of the press and public after Judge White's initial, controversial ruling.

As a result, Wikileaks' domain name, and the bank's documents, will stay accessible at least until the judge reaches his next decision on the merits of the case. Yet that does not mean that Wikileaks (or Mr. Shipton) can breathe a sigh of relief - for the only issue the court has yet addressed is the propriety of an injunction. Thus, the prospect of an award of substantial damages remains a very real one. (Of course, if the judge does decide he lacks jurisdiction, that prospect will disappear.)

In the second of this series of columns, I will consider the possibility Judge White will decide that he has jurisdiction, and must make a decision regarding the merits of the First Amendment arguments raised in the case. I address whether, in that event, Judge White should find Wikileaks's "Pentagon Papers" comparison persuasive.

Julie Hilden, who graduated from Yale Law School, practiced First Amendment law at the D.C. law firm of Williams & Connolly from 1996-99. Hilden is also a novelist. In reviewing Hilden's novel, 3, Kirkus Reviews praised Hilden's "rather uncanny abilities," and Counterpunch called it "a must read.... a work of art." Hilden's website,, includes free MP3 and text downloads of the novel's first chapter.

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