Privacy, civil rights advocates castigate Wikileaks ruling

Prior restraint -- shades of the Pentagon Papers?

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The Web's Pentagon Papers?

The rulings evoked criticism from several quarters. According to Ardia, the ruling is somewhat comparable to an action that goes back to the 1970s when The New York Times was enjoined from publishing Daniel Ellsberg's Pentagon Papers. "This is clear prior restraint on speech," Ardia said. "It's to stop someone from speaking before they've had a chance to speak," he added.

The court ruling also shows that the judge may not have realized the full import and the futility of what he was hoping to achieve by shutting down the domain name, Ardia said. Far from suppressing the bank's contents and limiting its exposure, the ruling appears to have had exactly the opposite effect, with more sites carrying the documents now than before the ruling. A fairer outcome would have been for the court to simply order Wikileaks to take the offending documents down, and perhaps assess monetary damages if the site had been in violation of copyright, privacy or other laws, he said.

"It seems to me the judge may not have fully understood the way the Internet works and has issued an order that is overly broad and violative for First Amendment rights," Ardia said.

Steven Aftergood, director of the Federation of American Scientists' (FAS) Project on Government Secrecy, said the California court's decision sets up a troubling precedent. FAS was set up in 1945 by scientists involved in the Manhattan Project, which developed the first atomic bomb during World War II, and its board of sponsors includes over 65 Nobel laureates.

"Once an order of this kind is granted, it becomes easier for another court in some other case to issue a similar order," Aftergood said. "That's what troubles me the most."

At the same time, Aftergood continued, the incident also raises questions about Wikileaks' own judgment when it comes to posting leaked documents online. "Do they recognize any kind of legal privilege or is everything fair game? If everything is fair game, then they are dangerous not just to tyrannical governments but also potentially to anyone who values privacy and confidentially," he said.

Marc Rotenberg, executive director of the Washington-based Electronic Privacy Information Center, said that from a technological perspective at least, the court's ruling is "somewhat silly."

"There is no meaningful way the courts can restrict the dissemination of this information on the Web," especially given the fact that it is already out there, he said.

While it is arguable that the Julius Baer Group may have had a valid reason for wanting the leaked documents pulled down, the court may have overreached when it ordered the entire site shut down in response, Rotenberg said. "Even if the Web site does have a few offending documents, it doesn't mean the entire site has to come down. ... It's very hard to imagine that a judge would order a newspaper to be shut down on the basis of a single article," he said. "It would be like putting a padlock on the front door of The New York Times" because of one article."

"It's like the court used a nuclear bomb when a single shot might have been all that was needed," added Gregory Nojeim, senior counsel at the Center for Democracy & Technology. By ruling that an entire domain be disabled, a lot of information that has nothing to do with the subject of the litigation has been affected as well, he said.

Michael Froomkin, a professor at the University of Miami School of Law, said that the court's permanent injunction is not really a classic case of prior restraint on speech, because it affects the domain registrar and not Wikileaks directly. "But it's close enough to stopping the delivery trucks on a newspaper that I think this aspect of the decision is a cause for some First Amendment concern," Froomkin wrote in his blog.

Martin Somogyi, a spokesman for the Julius Baer Group, said via e-mail that the actions taken by the bank "were in the best interests" of its clients.

"Julius Baer brought proceedings against Wikileaks in order to enjoin the unlawful publication of legally protected documents," Somogyi wrote in response to a request for comment from the company. "As a result, we successfully obtained a temporary restraining order against the Web site."

Since that happened, the bank has become the subject of "serious defamatory allegations," Somogyi said, in an apparent reference to the outpouring of criticism that has been generated by the lawsuit and the court's decision. "Such allegations are based on forged and stolen documents and are unequivocally denied," he wrote.

Copyright © 2008 IDG Communications, Inc.

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