Legal Commentary

Wikileaks: One Injunction Or Two?

By Professor University of Miami School of Law

There seems to be real and continuing confusion about what exactly happened in the wikileaks case. (Translation: I’m confused, and so are some other people.) I’ve had a look at the PACER records — the official online docket — for the case, and I still am not as sure as I would like.

Here’s what we know for sure. The court issued its injunction against Dynadot, an order PACER describes as “ORDER by Judge Jeffrey S. White granting 5 Motion for Preliminary Injunction as to defendant DYNADOT LLC (jjo, COURT STAFF) (Filed on 2/15/2008) (Entered: 02/15/2008).”

The next entry on the docket is what I previously described as the “gag order”, and which PACER captions as “ORDER GRANTING AMENDED TEMPORARY RESTRAINING ORDER AND ORDER TO SHOW CAUSE RE: PRELIMINARY INJUNCTION. Signed by Judge Jeffrey S. White on 2/15/08. (jjo, COURT STAFF) (Filed on 2/15/2008) (Entered: 02/15/2008)”.

Julius Baer Bank and Trust v. Wikileaks page at the Citizen Media Law Project, describes the sequence of events as follows,

On February 15, 2008, the court issued what it captioned as an “Order Granting Permanent Injunction.” This order, which appears to be the result of a stipulation between the plaintiffs and Dynadot, Wikileaks’ domain name registrar and web host, required that Dynadot immediately disable the entire wikileaks.org domain name and account and remove all DNS hosting records.

Later that same day, the court issued an Amended Temporary Restraining Order that drops the requirement that Dynadot disable the entire Wikileaks.org domain. Among other things, the amended order enjoins the defendants from “displaying, posting, publishing, distributing, or linking to … all documents and information originating from [the plaintiffs’ banks] which are internal non-public company documents and/or which contains private client or customer bank records.”

From the official sources, I can’t tell you for sure that this is wrong, but I can tell you why it doesn’t seem all that likely: (1) the first order is a preliminary injunction, the second only a TRO; (2) the second order nowhere mentions that it is either amending or vacating the first order, which you would expect if it were; (3) the two orders are largely addressed to different parties and are about different things (yes, Dynadot is mentioned in the second one, but only as part of a large group); (4) the first order contemplates an order being drafted for Dynadot being dismissed with prejudice, the second doesn’t.

Now, if it’s true that if these are two separate orders, that doesn’t explain why the second one is captioned an “amended” TRO. What’s it amending? Either an earlier order, or an earlier draft order, I presume, but I haven’t figured out which.

Full post as published by Discourse.net on February 19, 2008 (boomark / email).