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Wikileaks judge gets Pirate Bay treatment

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Farewell Smokestacks

All of this seems to have been lost on Judge White. Last Friday, he issued a sweeping court order that directed Wikileaks and a dizzying array of ISPs, DNS hosts and website server providers to suspend all Wikileaks websites. White went so far as to extend his directive to "all those in active concert or participation with the Wikileaks defendants ... and all others who receive notice of this order."

Given the number of internet users who have joined Wikileaks' cause since learning of the case, the order could easily extend to tens of thousands of people or groups, many of them well beyond the jurisdictional reach of White's San Francisco-based court.

Perhaps that's why the only practical effect his ruling had was to force a registrar by the name of Dynadot to suspend the Wikileaks.org domain name. The site remains reachable by accessing its IP address or alternate domain names such as Wikileaks.be and wikileaks.in. That's akin to removing a person's name from the phone book but not disconnecting his phone.

White's lack of internet savvy was in further evidence when he directed that a copy of his order be emailed to Wikileaks within 24 hours of the issuance of his order. The only problem there was that the suspending of Wikileaks.org prevented the organization's email system from working.

It would appear White is still caught up in the age that preceded the internet, when trade secrets were generally written down on paper and a fair amount of effort was required to disseminate them. Back in this smokestack era, broad orders covering anyone involved even indirectly in the appropriation of trade secrets made sense because the orders frequently had the result of plugging the leak.

Not so in this case, where the internet is a central player. White's order has done little to stop the leak, and it can be argued that it has only made the leak bigger. A few days ago, nary a soul had heard of Julius Baer or Wikileaks. Julius Baer's alleged money laundering has since gone mainstream thanks to the order, which has generated an endless series of headlines and provoked the ire of censorship opponents who have begun spreading the internal documents on mirror sites and peer-to-peer networks.

There are also perceived shortcomings in White's order. Specifically, the directive disabling the entire site is perceived by some First Amendment lawyers as a clear violation of free speech. And his prohibition on the publishing of "any other new or additional yet unpublished documents and data" that might belong to Julius Baer, likely amounts to prior restraint, another constitutional no-no.

As Eric Goldman, a professor of Law at Santa Clara University and author of the Technology and Marketing Law Blog, observes: "There's simply no good remedy once confidential information hits the internet, and that's very frustrating to judges who are used to solving problems." Judge White, welcome to the internet age. ®

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