Free speech advocates hailed the decision on Friday of a federal judge to withdraw a prior order turning off the Web address of Wikileaks.org. But the reasoning of United States District Judge Jeffrey S. White also means that the court may dodge having to grapple with some of the First Amendment questions posed by the case and touched on repeatedly at a lengthy hearing.
The lawsuit, brought by a Swiss bank and its Cayman Islands subsidiary against Wikileaks and Dunadot, the registrar for its url, became a cause célèbre for organizations like the American Civil Liberties Union, Public Citizen and the Electronic Frontier Foundation. They responded with a barrage of court filings after the order signed by Judge White that required Dynadot to disable the Wikileaks.org address, making it more difficult – but not impossible – for Internet users to get to materials published by Wikileaks.
The bank, Bank Julius Baer & Co., claimed that Wikileaks had displayed confidential, personally identifiable account information of its customers, as a result of possibly criminal actions by a former employee. Lawyers for the bank told Judge White that Julius Baer clients had a right to keep their account information private and that there was no compelling interest to justify their disclosure. In this way lawyers for the bank set up a conflict between freedom of speech and the right to personal privacy.
The judge and the lawyers also struggled mightily to define Wikileaks, which defines itself as “founded by Chinese dissidents, journalists, mathematicians and startup company technologists, from the US, Taiwan, Europe, Australia and South Africa.”
Traditional entities, like companies and individuals, have citizenship status that can determine when they are subject to a particular court’s jurisdiction. But what is Wikileaks, which has not been represented by a lawyer throughout these proceedings? “Whatever this entity is, it has not filed a response,” Judge White observed.
Paul Alan Levy, a lawyer for Public Citizen, argued that the bank had brought more publicity to the documents on Wikileaks by filing its lawsuit and obtaining the order affecting the site’s domain name. Under such circumstances, Levy asked the judge, “Should you give them any relief to help them unring the bell?” The question implicitly was whether the victims of public disclosure on the Web have any shot at redress.
After hours of discussion that suggested the judge’s level of concern with reaching the correct outcome, Judge White looked unhappy that he could not think of a way to help the bank customers affected by the release of the documents. But he said that he feared the initial order suspending Wikileaks.org raised serious questions of unjustified prior restraint on free speech, and that in any event, once the documents were online, the court might well be powerless. “Maybe that’s just the reality of the world that we live in,” Judge White said. “When this genie gets out of the bottle, that’s it.” (info from The New York Times)