Court shut-down of H-1B sites 'deeply dangerous'

EFF warns of broader implications to state court's order to national Web hosting services

A New Jersey judge's order issued two days before Christmas to shut down three anti-H-1B visa Web sites is drawing sharp criticism from an attorney at the Electronic Frontier Foundation.

Kurt Opsahl, a senior staff attorney at EFF, a San Francisco-based organization that has litigated on issues of bloggers' rights, anonymity, and file sharing among others, believes the court order to shut down the Web sites is "deeply dangerous and wrong," in part, because it was aimed at the entire Web sites and not just the posts or comments in question.

"Imagine if a court could order Amazon.com or Yelp.com shut down because of a disparaging review of a single product," wrote Opsahl, in an analysis posted on the EFF's Web site.

The case stems from a lawsuit by Apex Technology Group Inc., an Edison, NJ IT services firm, over comments and postings that appeared on several blogs it claims defamed the company. This all may have began sometime this summer when an Apex employment contract affecting H-1B employees appeared on a Web site unrelated to those named in the case.

The contract was removed, but eventually comments and posts complaining about Apex appeared on multiple sites, including ITgrunt.com, EndH1B.com, and GuestWorkerFraud.com, the three sites named in the lawsuit.

Apex is claiming the accusations made on those sites included wrong information that was defamatory and hurting business. It demanded the information be removed and the posters' identity be revealed, which was evidently refused by the site operators.

In response to Apex's lawsuit, Middlesex County Superior Court Judge James Hurley ordered domain registrars and hosting providers, including GoDaddy, Network Solutions, Comcast Cable Communications Inc., DiscountASP.Net, to disable three sites. Facebook was also ordered to pull a page down from ITgrunt. ITgrunt.com, EndH1B.com are both offline, but GuestWorkerFraud.com remains up.

"The order has troubling implications about the longstanding constitutional right to anonymous speech," Opsahl said in his analysis.

In an interview, he said he doesn't know if the EFF will get directly involved in the case. "It is something that is definitely of interest, but whether we would take it up as a case remains to be seen," Opsahl said.

Ordinarily, a litigant seeking to unmask an anonymous speaker would have to obtain a subpoena in the service provider's state, but the New Jersey court short-cut that process, especially over a holiday period when it is all the more difficult to obtain emergency legal assistance," he wrote.

But Patrick Papalia, an attorney at Herten Burstein in New York who representing Apex, disagreed with the Opsahl's assessment and said legal standards were met, and that the case record was clear on it. He said the postings were clearly false, including one that claimed the opponents had already won the case.

Papalia said Apex isn't pursuing the case for financial reward, and just wants to stop the false postings about the company. He said it's clear that the poster "was not willing to abide by the rules and the law."

Opponents see broader implications. Donna Conroy, who heads Bright Future Jobs, a Chicago-based group that is seeking H-1B reform, said that if the court order is allowed to stand it "does embolden companies to use this stealth technique" to shut Web sites, and believes the lawsuit "is about quashing any nascent movement" to organize on the issue.

Patrick Thibodeau covers SaaS and enterprise applications, outsourcing, government IT policies, data centers and IT workforce issues for Computerworld. Follow Patrick on Twitter at @DCgov, send e-mail to pthibodeau@computerworld.com or subscribe to Patrick's RSS feed .

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