S.F. judge dissolves his Wikileaks injunction
(02-29) 17:35 PST SAN FRANCISCO -- A federal judge in San Francisco who
had ordered the
shutdown of a whistle-blowers' Web site where private bank do***ents were
posted changed his
mind Friday, conceding his original ruling might not have been
constitutional.
U.S. District Judge Jeffrey White drew nationwide attention, and
widespread criticism from
civil liberties groups and news organizations, with his Feb. 15 injunction
requiring a Bay Area
Internet registrar to disable the Wikileaks.org site and prevent the
organization from
transferring to another server.
Wikileaks describes itself as an enabler of "principled leaking" by
government and cor****ate
insiders, who post do***ents on the site anonymously. The injunction was
requested by a Swiss
bank, Julius Baer & Co., whose do***ents, pur****ting to show tax fraud and
money-laundering by
customers with funds in the Cayman Islands, were displayed on the Web
site.
The bank said the do***ents were stolen or forged and invaded its
customers' privacy.
The shutdown order was negotiated by the bank and Dynadot, the San Mateo
company that
registered Wikileaks' use of the Web site. But the American Civil
Liberties Union, Public
Citizen and a host of media advocates and owners - including Hearst Corp.,
which owns The
Chronicle - called the injunction an unprecedented assault on free
expression and likened it to
closing a newspaper because of objections to one article.
After a three-hour hearing Friday, White dissolved the injunction. He also
rejected the bank's
request to extend a restraining order that required Wikileaks and the
Internet registrar to
remove the bank do***ents from the Web site. The restraining order expired
Friday.
Such decrees raise "serious questions of prior restraint (on speech) and
possible violations of
the First Amendment," White said.
He also said federal courts may lack jurisdiction over the case because
the bank has failed to
show that Wikileaks, or anyone responsible for its operations, is based in
the United States.
Even if other legal obstacles disappeared, White added, any injunction
against Internet posting
is likely to be ineffective because the do***ents are "fully out in the
public domain" and can
be transferred to other sites.
The judge kept the bank's suit alive, but advised its lawyers to "consider
whether there may be
other ways to achieve the same goals," such as suing for damages. The
attorneys indicated
afterward that they would be willing to refile the suit in a state court
if White concluded
federal courts have no jurisdiction.
White's ruling Friday implied a judicial "abdication of authority over the
Internet," said
William Briggs, a lawyer for Julius Baer. "That means it's a frontier
that's wide open."
Ann Brick, an American Civil Liberties Union lawyer, said White
"understood the limits the
First Amendment places on what courts can do to deprive the public of the
right to know."
Steven Mayer, another lawyer for civil-liberties groups, predicted the
bank would encounter the
same free-speech problems in state court.
White made it clear he was aware of the unflattering media coverage of his
earlier ruling, and
reflected on the difficulties courts face in applying established legal
doctrines to the
Internet and to entities like Wikileaks.
The organization says it was founded in 2006 by dissidents, journalists
and others from several
nations. It has a Web server in Sweden but no established headquarters and
no president or
formal leader****p structure, only an advisory board, according to its Web
site.
Like the better-known Wikipedia, with which it is not formally affiliated,
it invites posters
to submit, revise and comment on do***ents on its site, and disclaims
responsibility for the
contents.
Despite White's Feb. 15 injunction, Wikileaks remained accessible through
its Internet Protocol
or IP address, 88.80.13.160, and through so-called mirror sites in Europe
that replicate its
contents.
On Friday, the owner of the Wikileaks.org domain name, John ****pman, was
represented in court
by attorney Roger Myers. White told Myers he considered ****pman to be
Wikileaks' legal
representative and asked if he would object to an order that allowed the
organization to regain
its domain name if it removed all information that identified individual
bank customers.
Myers replied that ****pman, an Australian citizen living in Kenya, has no
control over the Web
site. Paul Levy, an attorney with Public Citizen, said he doesn't believe
a loose network of
activists like Wikileaks is even susceptible to a lawsuit.
As he announced his ruling, White observed that he was encountering "a
definite disconnect
between the evolution of our constitutional jurisprudence and modern
technology."
This article appeared on page B - 1 of the San Francisco Chronicle
http://www.sfgate.com/cgi-bin/article.cgi?f=/c/a/2008/03/01/BASUVBN0I.DTL
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