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Wikileaks judge reverses takedown order

Constitutional concerns

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Civil libertarians scored a decisive victory on Friday when a federal judge reversed two controversial orders meant to disable Wikileaks, a website devoted to disclosing confidential information exposing unethical behavior.

US District Judge Jeffrey S. White issued the orders two weeks ago after Wikileaks posted internal documents purporting to show that a bank located in the Cayman Islands engaged in illegal tax evasion and money laundering. One ruling demanded Wikileaks and a host of third parties refrain from posting any additional documents or linking to any documents that had already been disclosed. The other required Dynadot, the registrar of the Wikileaks.org domain name, to make the address inaccessible and to prevent its owner from transferring it to any other service.

Earlier this week, attorneys representing the Electronic Frontier Foundation, American Civil Liberties Union and other groups filed motions in the case arguing that the White's orders violated several Constitutional protections and legal principles. Specifically, they argued the restrictions amounted to prior restraint, which under the Constitution, can only be imposed in limited situations. After more than three hours of oral argument in a San Francisco federal courtroom today, White conceded.

"The court has serious questions about the concerns, as properly raised before the court, would make the granting of relief requested by the plaintiffs constitutionally appropriate," he said.

He immediately rescinded both orders.

White said he may also be swayed by arguments that he didn't have the authority to issue the order because Wikileaks was not headquartered in the US. Bank Julius Baer, the Swiss-based owner of the Cayman Islands bank, had argued the group operating Wikileaks was based in California and pointed to whois records for the Wikileaks.org domain name as proof. Federal courts lack jurisdiction in cases where both the plaintiff and defendant are located outside the country.

He went on to express doubt whether he'd be able to able to issue an order in the case anytime soon, if ever, and said attorneys for Julius Baer "should take a deep breath." He also pointed out what plenty of critics of his ruling have already observed - that the damage to Julius Baer has already been done.

"When the genie gets out of the bottle, it's out for all purposes," he said.

Attorneys for Julius Baer argued the orders were necessary to protect bank customers whose personal information was contained in the internal documents against identity theft. They argued that the privacy rights of those individuals outweighed the free speech rights of the groups intervening. They also argued that international treaties upheld the right of Julius Baer to sue in federal court.

The reversal means that while Julius Baer's case proceeds, the Wikileaks website will be free to continue operating unhindered by any kind of preliminary ruling.

"It was the right decision to make and I think everyone who was representing the internet community and the First Amendment and the media have good reason to feel good about what Judge White did today," said Steven Mayer, an attorney who represented the EFF, ACLU and the Project on Governmental Oversight. "It establishes the precedent that judges can't and shouldn't shut down a domain name and thus deprive people to access to protected first amendment speech on the internet. Its quite clear to obtain injunctive relief the plaintiffs are going to have a very difficult time."

In a sense, the earlier rulings had little practical effect on the Wikileaks site. It was easily accessible even after Dynadot carried out the mandate though a variety of different addresses, including domain names registered in India or Belgium or by its numerical IP address. Only the Wikileaks.org domain was blocked.

But for the groups who intervened, the orders represented a potential precedent that when applied to many websites, would cause them to go completely dark.

White left for another day his decision on whether Dynadot is immune from liability in the case. Under the Communications Decency Act, internet service providers are granted safe harbor for content that's posted by their customers. Although Dynadot originally agreed to freeze the Wikileaks domain name in exchange for being dropped from the suit, an attorney for the company on Friday argued it should never have been sued to begin with. Several of the intervening attorneys agreed.

Dynadot reconnected the Wikileaks.org domain name within an hour of White issuing a written order. Additional groups intervening in the case included Public Citizen and the California First Amendment Coalition. ®

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