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February 20, 2008

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A 33-year-old woman was sentenced to life in prison after a jury found her guilty of having sex with a 5-year-old boy.
http://www.adelaide-advertiser.net

And one can only wonder whether the public outcry in the on-line community helped educate the Judge as well. It just goes to prove, justice is best served up in the open light of day where everyone can see what is going on.

This development is great news for the Constitution, Free Speech and the First Amendment.

A federal judge on Friday allowed whistle-blower site WikiLeaks to resume operation in the United States, a week after ordering its U.S. hosting company and domain registrar to shut down and lock the renegade's site from the internet.

The judge conceded the futility of attempts to censor information, in this instance private banking records, after it has been posted to the internet.

"When this genie gets out of the bottle, it's out for all purposes," U.S. District Judge Jeffrey White said after a more than 3-hour-long hearing here. Earlier, White said he had "an obligation to get it right" and that "I took an oath to uphold the Constitution."

The site resumed U.S. operations shortly after 5 p.m. Pacific Coast time. Its overseas servers were not affected by the litigation. Hours after the decision, WikiLeaks said it "shall not be cowed by those who would silence the truth. It will continue to be a forum for the citizens of the world to disclose issues of social, moral and ethical concern."
Still, the judge cautioned that he is likely to toss the entire case. He said the American courts may not be the proper venue for a Swiss bank to sue the WikiLeaks.org domain name owner -- John Shipton, an Australian citizen living in Kenya.

The judge added that the bank "should take a breath" and consider whether it wishes to continue pursuing the litigation, especially because the genie is out of the bottle.

A federal judge on Friday allowed whistle-blower site WikiLeaks to resume operation in the United States, a week after ordering its U.S. hosting company and domain registrar to shut down and lock the renegade's site from the internet.

The judge conceded the futility of attempts to censor information, in this instance private banking records, after it has been posted to the internet.

"When this genie gets out of the bottle, it's out for all purposes," U.S. District Judge Jeffrey White said after a more than 3-hour-long hearing here. Earlier, White said he had "an obligation to get it right" and that "I took an oath to uphold the Constitution."

The site resumed U.S. operations shortly after 5 p.m. Pacific Coast time. Its overseas servers were not affected by the litigation. Hours after the decision, WikiLeaks said it "shall not be cowed by those who would silence the truth. It will continue to be a forum for the citizens of the world to disclose issues of social, moral and ethical concern."
Still, the judge cautioned that he is likely to toss the entire case. He said the American courts may not be the proper venue for a Swiss bank to sue the WikiLeaks.org domain name owner -- John Shipton, an Australian citizen living in Kenya.

The judge added that the bank "should take a breath" and consider whether it wishes to continue pursuing the litigation, especially because the genie is out of the bottle.

U.S. judge on Friday reversed his earlier ruling shutting down a Web site with private bank data from Switzerland's Julius Baer Holding. U.S. District Judge Jeffrey White reversed his February 15 order after hearing arguments by attorneys from the American Civil Liberties Union and other free-speech groups that his decision amounted to unconstitutional prior restraint.

"There are serious questions of prior restraint and possible violations of the First Amendment," White ruled from the bench in his San Francisco courtroom.

"The court has serious questions whether those concerns raised before the court make the granting of the relief requested by the plaintiffs constitutionally appropriate," he added.

"The court has serious questions about the effectiveness of any order this court might issue, given the current state of affairs, that these matters are fully out in the public domain, in the virtual domain," White said in making his ruling on Friday.

Attorneys for news organizations and Web sites had argued that prior restraint should be limited to only the most extreme cases, such as when national security is at stake. Other remedies, such as lawsuits seeking monetary damages following publication of sensitive matters, should be pursued instead, they said.

ZURICH / NEW YORK, February 28, 2008 — Julius Baer wishes to address certain misconceptions relating to a recent court decision to take the Wikileaks.org website off line.

This decision was arrived at only after a month long effort on the part of Julius Baer and its advisors had failed to identify and engage the operators of Wikileaks in a dialogue regarding the unlawful posting of stolen and forged bank records. This matter has nothing whatsoever to do with censorship or The First Amendment. Instead, Julius Baer’s sole objective has always been limited to the removal of these private and legally protected documents from the website.

The documents in question are protected and prohibited from unauthorized publication under U.S., California and foreign consumer banking and privacy protection laws. The posting of confidential bank records by anonymous sources significantly harms the privacy rights of all individuals.

It is not and has never been Julius Baer’s intention to stifle anyone’s right to free speech. Indeed, Julius Baer has specifically made no attempt to remove material on the website which refers to the organization but which does not include information personal to its customers. However, Julius Baer denies the authenticity of this material and wholly rejects the serious and defamatory allegations which it contains.

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

(1) 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.

EFF is defending the First Amendment rights of a citizen-journalist to link from a public "wiki" to electronic copies of damaging internal Eli Lilly documents relating to the controversial prescription drug Zyprexa.

EFF's client, an anonymous citizen-journalist, posted the links on the wiki located at http://zyprexa.pbwiki.com.. Eli Lilly complained, and Judge Weinstein issued his order on January 4. Nonparties in the litigation have the right to link to publicly important information, and EFF has challenged this order as an unconstitutional prior restraint on free speech in violation of the First Amendment.

Preventing a citizen-journalist from posting links to important health information on a public wiki violates the First Amendment. Eli Lilly's efforts to censor these documents off the Internet are particularly outrageous in light of the information reported by The New York Times, which suggests that doctors and patients who use Zyprexa need to know the information contained in those documents.

According to The New York Times reports, the Eli Lilly documents show that the company intentionally downplayed the drug's side effects, including weight gain, high blood sugar, and diabetes, and marketed the drug for "off-label" uses not approved by the Food and Drug Administration (FDA). The documents were leaked from the ongoing Zyprexa products liability lawsuit, where Weinstein is the presiding judge.

"The order was entirely 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. Unable to lawfully attack Wikileaks servers which are based in several countries, the order was served on Wikileaks's California registrar Dynadot ("the power company"). The order also enjoins every person who has heard about the order from from even linking to the documents," said Wikileaks in the release.

There have, of course, been previous attempts by the U.S. Government and others to block publication of particular documents, most famously in 1971 when the Nixon administration attempted to stop publication by the New York Times of excerpts from the Pentagon Papers, leaked by Daniel Ellsberg. But trying to close down an entire site in this way is truly unprecedented. Not even the Nixon administration, when they sought to block publication of the Pentagon Papers, considered closing down the New York Times in response.

If this injunction stands, it will set an incredible precedent for all of us who use the web to unveil misbehavior by the rich and powerful. Fortunately, Wikileaks is fighting this unconstitutional attack on press freedom, aided by six pro bono attorneys in San Francisco. While Wikileaks has so far not issued any particular call for support, all who value freedom should stand ready to offer whatever support they need.

Those of you with long memories may remember the Spamhaus case a while back, 2006 to be precise. Basically, as part of a wider case, a proposed order was submitted to a court that would have ordered ICANN (the global organisation that (in some way) administers or supervises the domain name system - I did my LLB thesis on how this happens and other issues, it’s lots of fun) to remove Spamhaus’s registration. ICANN made it very clear at the time that it couldn’t do this if it wanted to. Indeed, the final order in that dispute is a good explanation on why the first order in the Wikileaks case is wrong; it explains carefully the two key points, that neither ICANN nor the (Canadian) registrar have any involvement in the matter, and that a court order should be directed towards the offending activities and not the site as a whole. (Don’t forget that the latest in that case is that the injunctions and damages that were awarded have been quashed and sent back for further consideration.

Remember, the domain name system itself works off what I and others have been arguing for some years is a relatively narrow point of control (by necessity), being the root server system, which the US government has self-declared full legal control over, albeit self-restrained in various ways and integrated with a separate industry/techie-driven standards model and the quasi-international organisation that is ICANN. If courts find that they can point their bizarre orders in this direction (i.e. towards the DNS) - perhaps this week’s decision should be a wake-up call in that regard - then we are on new ground. The continuing lack of clarity at an intergovernmental level over ‘what to do’ about ICANN and net governance will come back to bite us, if this example is the first of many. If it’s not, then it’s another false alarm - but how many false alarms do we need before taking the question seriously?

Julie Turner, an attorney in California who represented Wikileaks prior to this latest litigation but is not counsel for the group on this matter, is surprised that the court sanctioned such a broad agreement.

"It’s like saying that Time magazine published one page of sensitive material so (someone can) seize the entire magazine and put a lock on their presses," she says.

In a pretty extraordinary ex-parte move, the Julius Baer Bank and Trust got Dynadot, the U.S. hosting company and domain registrar for Wikileaks, to agree not only to take down the Wikileaks site but also to "lock the wikileaks.org domain name to prevent transfer of the domain name to a different domain registrar." Judge Jeffrey White in the U.S. District Court for Northern California signed off on the stipulation between the two parties last week without giving Wikileaks a chance to address the issue in court.

The Julius Baer Bank, a Swiss bank with a division in the Cayman Islands, took issue with documents that were published on Wikileaks by an unidentified whistleblower, whom the bank claims is the former vice president of its Cayman Islands operation, Rudolf Elmer. The documents purport to provide evidence that the Cayman Islands bank helps customers hide assets and wash funds.

Wikileaks has six pro-bono attorney's in S.F on roster to deal with a legal assault, however Wikileaks was given only hours notice "by email" prior to the hearing. Wikileaks was NOT represented. Wikileaks pre-litigation California council Julie Turner attended the start of hearing in a personal capacity but was then asked to leave the court room.

EFF spent much of last week trying to find legal representation for WikiLeaks on very short notice. They're continuing to follow the case with interest.

While it's an obvious drag that this has occurred it does serve two distinct purposes: (1) prove that sites like WikiLeaks will not be silenced and (2) provide a precedent around which to galvanize support for laws and governance which adheres to the rule of law and the will of the people.

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.

The site itself could still be accessed at its Internet Protocol (IP) address (http://88.80.13.160/) -- the unique number that specifies a Web site-s location on the Internet. Wikileaks also maintained "mirror sites," which are copies of itself, usually to insure against outages and this kind of legal action. These sites were registered in countries like Belgium (http://wikileaks.be/), Germany (wikileaks.de), and the Christmas Islands (http://wikileaks.cx) through domain registrars other that Dynadot, and so were not affected by the injunction.

Fans of the site and its mission rushed to publicize those alternate addresses this week. They have also distributed copies of the sensitive bank information on their own sites and via peer-to-peer file sharing networks.

The bank may have turned a couple of on-line copies of private documents into an avalanche of copies posted across the web.

How in the world does a judge order a web site containing thousands of pages of legitimate content to be shut down ex parte? Even if there were some false or private documents on the web site, you can't shut the whole site down. Does the court even have jurisdiction over Wikileaks?

"This case raises First Amendment issues that are for the Courts to decide, not my client, Dynadot," stated Garret D. Murai of Wendel, Rosen, Black & Dean, LLP, who represents Dynadot. "The only agreement by Dynadot was to comply with the Court's previous order to preserve evidence, including preventing Wikileaks from transferring its domain name to another registrar and from changing its account settings - essentially, to preserve the status quo. Dynadot did not agree to remove the name server settings for wikileaks.org or to produce any information. This was requested by Julius Baer and granted by the Court."

Wikileaks is a website that allows whistleblowers to anonymously release government and corporate documents, allegedly without possible retribution. Wikileaks operates on modified MediaWiki software, although it is independent from the Wikimedia Foundation. It claims that postings are untraceable by anyone attempting to do so. It was launched in December 2006 and, as of November 2007, claims to contain over 1.2 million documents.[1] Its primary site is with the Internet service provider PRQ in Sweden.

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