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Two Strange Orders in the Wikileaks Case

By Professor University of Miami School of Law

Federal District Court Judge Jeffrey S. White of the Northern District of California has issued a pair of (unprecedented?) ex parte orders in a case brought by Bank Julius Bear against Wikileaks.org. Because there are two separate orders, much of the early reporting was a bit confused — indeed I got confused, which is why I’m posting this substantially amended post and taking down my older, not-very-accurate posting.

One order requires an ISP, Dynadot, to take down all DNS records pertaining to the wikileaks.org site.

“Dynadot shall immediately clear and remove all DNS hosting records for the wikileaks.org domain name and prevent the domain name from resolving to the wikileaks.org website or any other website or server other than a blank park page, until further order of this Court.”

I presume Dynadot was their registrar as this had the effect of making the wikileaks.org domain inoperative. (The only vaguely similar case I know of is when wab.com was surrendered to the feds as part of a plea deal in a criminal federal copyright infringement case — but as the government isn’t the plaintiff here that’s not very similar.)

This isn’t a classic prior restraint on speech since it reaches the registrar not the speaker — 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. The IP numbers for the site still work, though. Try 88.80.13.160.

The second order is a much broader gag order that enjoins everyone sued by the plaintiffs — wikilieaks, everyone connected by the parties, ten John Does, their ISP, lawyers, and anyone working “in concert” with them, and “all others who receive notice of this order” (!) and orders them not to do any of the following,

displaying, posting, publishing, distributing, linking to and/or otherwise providing any information for the access or other dissemination of copies and/or images of the JB Property … and any information or data contained therein, including on [listed websites or other websites they control]

Leaving aside the sweep of the order — on what theory does this court have jurisdiction of everyone who learns of the order? — this seems like a classic prior restraint and is thus presumptively unconstitutional. Whether any of the very limited exceptions might apply is hard to tell from the documents available, but I’m pretty skeptical. Assuming that the information was in fact stolen, one has to admit that the case law relating to the retention of stolen documents is confusing: on the one hand the law clearly allows the owner to demand their return. On the other hand, as far as I know, the very strong presumption against prior restraints on publication has not been overcome as regards to parties who receive the information from a person other than the thief. Note, however, that even after the Progressive case, the law on prior restraint is only that it is a very very very high bar — not foreclosed utterly.

The orders in this case came in the context of an ex parte hearing on a preliminary and emergency injunctive request from Bank Julius Baer of Switzerland which alleges that wikileaks is publishing secret bank information.

According to Wikinews, ‘Wikileaks.org’ taken off line in many areas after fire, court injunction,

The documents allegedly reveal secret Julius Baer trust structures used for asset hiding, money laundering and tax evasion. The bank alleges the documents were disclosed to Wikileaks by offshore banking whistleblower and former Vice President the Cayman Island’s operation, Rudolf Elmer.

More information about the underlying dispute at cryptome.org and this wikileaks mirror site.

Full post as published by Discourse.net on February 18, 2008 (boomark / email).