Court Orders Wikileaks.org Shutdown, Then Grants Limited Reprieve?

Last Friday, a federal district court judge in San Francisco issued a stunningly broad injunction that brought down Wikileaks, a site that is developing what it describes as an "uncensorable Wikipedia for untraceable mass document leaking and analysis."

The case was initiated earlier in the week by Julius Baer Bank and Trust Company, a Cayman Islands banking entity, which along with its Swiss parent company filed an ex parte application for a temporary restraining order seeking to enjoin Wikileaks from publishing or distributing copies of documents the plaintiffs claim contain "stolen or otherwise wrongfully obtained confidential and protected bank files and records."

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 judge must have finally read the United States Constitution and then quickly 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." (I should note, however, that the original order is still listed on the court's docket and the amended order does not rescind -- or even mention -- the earlier order.)

As of February 18, 2008, the Wikileaks.org domain is still down, but the organization issued a press release through one of its mirror sites:

Transparency group Wikileaks forcibly censored at ex-parte Californian hearing -- ordered to print blank pages -- 'wikileaks.org' name forcibly deleted from Californian domain registrar -- the best justice Cayman Islands money launderers can buy?

When the transparency group Wikileaks was censored in China last year, no-one was too surprised. After all, the Chinese government also censors the Paris based Reporters Sans Frontiers and New York Based Human Rights Watch. And when Wikileaks published the secret censorship lists of Thailand's military Junta, no-one was too surprised when people in that country had to go to extra lengths to read the site. But on Friday the 15th, February 2008, in the home of the free and the land of the brave, and a constitution which states "Congress shall make no law... abridging the freedom of speech, or of the press", the Wikileaks.org press was shutdown.

The court has scheduled a hearing on the injunction for February 29, 2008. You can follow developments in the case by going to the CMLP's database entry: Julius Baer Bank and Trust v. Wikileaks.

UPDATE: I posted some additional commentary on the case: Making Sense of the Wikileaks Fiasco: Prior Restraints in the Internet Age.

More on the case: Judge in Wikileaks Case Reverses Course, Wikileaks.org is Back Online and Banks in Wikileaks Case Back Down, Seek to Dismiss Case After Losing Fight Over Injunctions.

 

Last updated on March 26th, 2008

Jurisdiction

It appears that the two plaintiffs are both from outside the US, and the web site in question resides outside the US. The only connection with the US seems to be that the domain wikileaks.org was registered with a domain registrar in California. I can understand that this might subject the domain registration itself to US jurisdiction (if this were a trade mark issue, for example). But I'm having a lot of difficulty figuring out how this creates enough "minimum contacts" to give a US court personal jurisdiction over the web site owners in a case that is not about the domain name, but about the material on the web site.

The "Ex Parte Application for TRO and Injunction" seems to neither claim, nor explain why, this District Court should have personal jurisdiction over the web site operators.

- Joe

Jurisdiction

Joe: You raise a great question, one that we've been grappling with ourselves. We decided to wait until we got a hold of the Complaint before responding to your post. Here's a quick overview of the parties involved:

  • Swiss bank Julius Baer & Co. Ltd. and their Cayman Island branch Julius Baer Bank and Trust Co. Ltd. (collectively the "bank”), the plaintiff who is upset that client documents were published on Wikileaks.org
  • Wikileaks and Wikileaks.org (collectively "Wikileaks"), the defendant website that allegedly published the documents
  • Dynadot, LLC (Dynadot), the defendant domain registrar for Wikileaks
  • Does 1 through 10, the defendants "responsible for the occurrences, acts and omissions" that "proximately caused" damages to the plaintiff

I really can't speak to whether the court has personal jurisdiction over Does 1-10, given that they are anonymous parties. As for the two remaining defendants, the Complaint alleges that the Wikileaks domain name is registered through Dynadot, a domain registrar in San Mateo, California. See Compl. ¶ 3. I don't think there's much dispute that the court has personal jurisdiction over Dynadot given that physical presence in a state is always a basis for personal jurisdiction.

Turning to Wikileaks, the Complaint states that Wikileaks has its "principal place of business in the State of California" (Compl. ¶ 7) and that the attached Exhibit A contains:

true and correct copies of printouts and/or screen-shots of the "Home” pages, "About" pages, and "Contact” and "Submissions" pages of the Wikileaks website, which evidences that Wikileaks is represented by counsel in and has one of its submission addresses for submission of and receipt of "leaked" documents in San Mateo, California. Compl. ¶ 3.

This is trickier. The assertion that Wikileaks has its principal place of business in California is conclusory, and without supporting information it’s difficult to determine Wikileaks’ physical presence in the state. The subsequent statements that Wikileaks has counsel and document submission addresses in California also don’t establish the physical presence requirement for personal jurisdiction. As to whether the court has personal jurisdiction over Wikileaks as an out of state defendant, you’re right that the focus will be on whether Wikileaks has minimum contacts with the state of California. Based on the Complaint, I’m not sure that the court can compel Wikileaks to appear and defend this lawsuit without offending the due process clause. We will be closely monitoring this case, and if any jurisdictional arguments are filed we will update you via this comment section or a blog post.

Alternative news website sued for comments in forum

Hi. There's a rather similar case going on:

"Eric Pepin - Higher Balance Institute Sue SOTT for 4.47 Million Over SOTT Forum Comments!"

http://tinyurl.com/2sg7gz

It seems to me that the difference form the wikileaks' case is that the comments on the sott forum were based on public documents (copies on the web of newspaper articles). As such it will set an even more important precedent any way that the case goes.

Shotting down Wikileaks

Shooting down Wikileaks would be a great loss for all of us, I think the issue could be solved in other ways. I don't know if a counterclaim would solve Wikileaks problem but they shouldn't give up without a fight.

   
 
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