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Judge is asked to rescind shutdown of website

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Media and public interest organizations tell the jurist that his order violates
constitutional provisions against prior restraint of free speech.

By Henry Weinstein, Los Angeles Times Staff Writer
February 27, 2008

A coalition of media and public interest organizations went to federal court
in San Francisco on Tuesday urging a judge to reconsider his order to shut down
a muckraking website that publishes leaked documents from businesses and government
agencies worldwide.

Lawyers for the Electronic Frontier Foundation, the American Civil Liberties
Union, Public Citizen and several news organizations, told U.S. District Judge
Jeffrey White that two orders he issued last week against were
prior restraints that violated the 1st Amendment.

Laura Handman, a Washington, D.C., attorney for the news organizations, said
White’s order was so expansive that the only way to describe it was as if a
judge had shut down a newspaper because of controversy over one article.

"I can’t think of another injunction that was so broad," said Matt
Zimmerman of the Electronic Frontier Foundation, a civil rights group that focuses
on digital issues.

White acted in response to a lawsuit filed Feb. 6 by Julius Baer & Co.,
a Zurich-based bank, alleging that a disgruntled former employee had posted
internal documents alleging money-laundering and tax evasion schemes at its
Cayman Islands branch. specifically urges readers to post leaked documents in an effort
to discourage "unethical behavior" by corporations and government
agencies. Among the 1.2 million documents that Wikileaks says it has posted
over the last several years is an operations manual for the controversial U.S.
prison at Guant√°namo Bay, Cuba.

Julius Baer, represented by the Century City firm Lavely & Singer, past
lawyers for several celebrities in battles with news organizations, alleged
that the postings violated privacy and bank secrecy laws of Switzerland and
the Cayman Islands and posed a serious threat of identity theft.

Judge White issued a temporary restraining order, barring Wikileaks from posting
the bank documents on the Internet. White has scheduled a Friday hearing on
whether to make the injunction permanent.

White also issued a permanent injunction ordering Dynadot of San Mateo, Wikileak’s
domain name registrar, to disable the website’s domain name.

That blocks access to the site through its principal entrance, although the
content remains available on mirror sites and through its numerical address.

Dynadot did not contest the judge’s actions. "The only agreement by Dynadot
was to comply with the court’s . . . order to preserve evidence," said
the company’s attorney, Garrett D. Murai.

Zimmerman, whose organization filed a motion seeking to intervene in the case,
said he was disappointed in Dynadot’s action. He said that a specific provision
of the Communications Decency Act providing immunity for an "interactive
computer service" protects the company against the bank’s claims.

On a broader level, attorney Thomas Burke and colleagues Handman and Kelli
Sager, representing 12 media groups that filed a friend-of-the-court brief,
cited the 1971 Supreme Court decision in the Pentagon Papers dispute as authority
for their position.

In that case, the Supreme Court rejected the Nixon administration’s bid to
bar publication of a secret government history of the Vietnam War.

"The 1st Amendment prohibits prior restraints in nearly every circumstance,
even where national security may be at risk and even when the source unlawfully
obtained the documents," said the attorneys, whose clients include the
Reporters Committee for Freedom of the Press, the Society of Professional Journalists,
The Times, Gannett Co. and Hearst.

Public Citizen and the California First Amendment Coalition filed a separate
brief contending that the case did not come under U.S. jurisdiction because
the parties include subjects of foreign states — the Swiss bank and Wikileaks,
many of whose members are abroad.

"In shutting down this website through an unlawful prior restraint, the
court has muzzled a very important voice in the fight against corporate and
government misdeeds," said Paul Levy, an attorney with Public Citizen.

Peter Lurie, deputy director of Public Citizen’s health policy wing, filed
a declaration saying that the organization frequently uses leaked government
documents to bring attention to important public issues, such as the Food and
Drug Administration’s consideration of "a drug company plan to conduct
research on its new drug in Latin America using a design that the agency acknowledged
would be unacceptable in the United States." After the plan was exposed,
the company redesigned its study, Lurie said.

"If Wikileaks is shut down," Lurie said, "the ability of Public
Citizen and its members to access" information from whistle-blowers "will
be significantly impaired."

Attorney William Briggs, who represents Julius Baer, said his firm was preparing
a response to the briefs lodged Tuesday. "This is a case that presents
a conflict between an individual’s right of privacy versus the press’ ability
to publish private information about private individuals," he said.

"I think the individual privacy rights outweigh the right of the press
to report that information because of reasons of identity theft. If financial
industry customers do not think their information is protected, those institutions
could go out of business."

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