BrandweekNRX, Feb 18 |
New York Times, Feb 20
(order of paragraphs rearranged to permit comparison)
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U. S. Court tries to shut down whistleblower site Wikileaks and fails.
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Judge Shuts Down Web Site Specializing in Leaks |
Wikileaks, a website designed to let whistleblowers publish sensitive documents has been ordered shut down by a US federal judge at the request of a Swiss bank and its Cayman Islands subsidiary. |
In a move that legal experts said could present a major test of First Amendment rights in the Internet era, a federal judge in San Francisco on Friday ordered the disabling of a Web site devoted to disclosing confidential information. The site, Wikileaks.org, invites people to post leaked materials with the goal of discouraging “unethical behavior” by corporations and governments. It has posted documents said to show the rules of engagement for American troops in Iraq, a military manual for the operation of the detention center at Guantánamo Bay, Cuba, and other evidence of what it has called corporate waste and wrongdoing.
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But the the court has failed to shut down the site, because the order is to remove the DNS hosting records, so that even though this prevents the www.wikileaks.org link from working, it doesn't actually take down the site: everything is up and running at 88.80.13.160 and this information is now spreading like wildfire on the Internet.
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The site itself could still be accessed at its Internet Protocol address (http://88.80.13.160/) — the unique number that specifies a Web site’s location on the Internet. |
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Fans of the site and its mission rushed to publicize those alternate addresses this week. They have also distributed copies of the bank information on their own sites and via peer-to-peer file sharing networks.
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Some pundits have stated that "taking something off the Internet is like taking pee out of a pool," and this latest, extraordinary, attack on free speech in the U.S. (by ordering deletion of an entire site to stop circulation of a few documents) is giving Wikileaks a PR boost the Cayman Island bank lawyers clearly had not expected. |
The feebleness of the action suggests that the bank, and the judge, did not understand how the domain system works, or how quickly Web communities will move to counter actions they see as hostile to free speech online.
Judge White’s order disabling the entire site “is clearly not constitutional,” said David Ardia, the director of the Citizen Media Law Project at Harvard Law School. “There is no justification under the First Amendment for shutting down an entire Web site.”
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To find an injunction similar to the Cayman's case, we need to go back to Monday June 15, 1971 when the New York Times published excepts of of Daniel Ellsberg's leaked "Pentagon Papers" and found itself enjoined the following day. The Wikileaks injunction is the equivalent of forcing the Times' printers to print blank pages and its power company to turn off press power. The supreme court found the Times censorship injunction unconstitutional in a 6-3 decision. |
In a statement on its site, Wikileaks compared Judge White’s orders to ones eventually overturned by the United States Supreme Court in the Pentagon Papers case in 1971. In that case, the federal government sought to enjoin publication by The New York Times and The Washington Post of a secret history of the Vietnam War. “The Wikileaks injunction is the equivalent of forcing The Times’s printers to print blank pages and its power company to turn off press power,” the site said, referring to the order that sought to disable the entire site.
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The order was written by Cayman Island's Bank Julius Baer lawyers and was accepted by judge White without amendment, or representations by Wikileaks or amicus. The case is over several Wikileaks articles, public commentary and documents dating prior to 2003. 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.
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The case in San Francisco was brought by a Cayman Islands bank, Julius Baer Bank and Trust. In court papers, the bank said that “a disgruntled ex-employee who has engaged in a harassment and terror campaign” provided stolen documents to Wikileaks in violation of a confidentiality agreement and banking laws. According to Wikileaks, “the documents allegedly reveal secret Julius Baer trust structures used for asset hiding, money laundering and tax evasion.” |
Unable to lawfully attack Wikileaks servers which are based in several countries, the order was served on the intermediary Wikileaks purchased the 'Wikileaks.org' name through -- California registrar Dynadot, who then used its access to the internet website name registration system to delete the records for 'Wikileaks.org'. |
On Friday, Judge Jeffrey S. White of Federal District Court in San Francisco granted a permanent injunction ordering Dynadot, the site’s domain name registrar, to disable the Wikileaks.org domain name. The order had the effect of locking the front door to the site — a largely ineffectual action that kept back doors to the site, and several copies of it, available to sophisticated Web users who knew where to look.
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Judge White ordered the California web hosting company Dynadot to "immediately clear and remove" records from Wikileaks and "prevent the domain name from resolving to the wikileaks.org website or any other website or server other than a blank page," until the court can review the case further. |
Domain registrars like Dynadot, Register.com and GoDaddy .com provide domain names — the Web addresses users type into browsers — to Web site operators for a monthly fee. Judge White ordered Dynadot to disable the Wikileaks.org address and “lock” it to prevent the organization from transferring the name to another registrar.
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Wikileaks was launched in early 2007 with the help of Chinese dissidents to help whistleblowers in authoritarian countries post sensitive documents on the Internet without being traced. It was aimed at "oppressive regimes in Asia, the former Soviet bloc, sub-Saharan Africa and the Middle East," but also was being used to post "unethical" behavior in Western countries.
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The site said it was founded by dissidents in China and journalists, mathematicians and computer specialists in the United States, Taiwan, Europe, Australia and South Africa. Its goal, it said, is to develop “an uncensorable Wikipedia for untraceable mass document leaking and analysis.” |
Despite the injunction, Wikileaks states that it will "keep on publishing, in fact, given the level of suppression involved in this case, Wikileaks will step up publication of documents pertaining to illegal or unethical banking practices."
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Lawyers for the bank and Dynadot did not respond to requests for comment. Judge White has scheduled a hearing in the case for Feb. 29. |
Wikileaks is still publishing in Belgium and, Christmas Island - the latter offering its many "cover names". |
Wikileaks also maintained “mirror sites,” or copies usually produced to ensure against failures and this kind of legal action. Some sites were registered in Belgium (http://wikileaks.be/), Germany(http://wikileaks.de) and the Christmas Islands(http://wikileaks.cx) through domain registrars other than Dynadot, and so were not affected by the injunction. |
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In a separate order, also issued on Friday, Judge White ordered Wikileaks to stop distributing the bank documents. The second order, which the judge called an amended temporary restraining order, did not refer to the permanent injunction but may have been an effort to narrow it. The narrower order, forbidding the dissemination of the disputed documents, is a more classic prior restraint on publication. Such orders are disfavored under the First Amendment and almost never survive appellate scrutiny.
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