Wikileaks and prior restraint in the age of the net

Saturday, March 1, 2008, 12:04 AM
Business by John (Article #191)

It's official: Wikileaks is getting its domain name back.

Wikileaks is a website that allows folks to securely leak documents in a plausibly deniable manner. Basically, it uses a third party to ensure authentication while maintaining deniability. Wikileaks has been a nightmare for corporations and governments try to hide document.

Bank Julius Baer, BJB, a bank based in Switzerland, had successfully sought an injunction from a California judge requiring the registrar of Wikileaks' domain name to terminate DNS resolution to the Wikileaks server, http://88.80.13.160.

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The same judge, Friday, dissolved the injunction and offered a number of observations pertaining to the issue of prior restraint on the internet.

Prior restraint is the ugly business of figuring out whether an organization should publish something in the first place. Increasingly, the courts take a dim view of prior restraint, as it tends to limit free speech and valuable discussion.

In the case of BJB, the concern was about the account holders of a foreign bank who were being helped, by BJB, the bank, to create dummy companies and tax havens overseas. Wikileaks published the entire how-to along with an extensive list of the clients who got such services from BJB.

The judge also added that the Communications Decency Act preludes the registrar from being subject to any such injunction. In essence, this means you sue the offending party that own a website, rather than suing the registrar to take down the domain name. That would be a great precedent if it holds up long-term, since it would limit the cheapest and easiest trick for knocking a website offline.

The money quotes from the News.com article follow:

One attorney for BJB said there were no First Amendment problems, invoking a
U.S. Supreme Court precedent dealing with an intercepted conversation played by
a radio station because, 'We allege, your honor, that Wikileaks has actively
solicited the theft of private information...they are participants in the
illegality.'

BJB also said, 'We're talking about private banking information, account
numbers, personal numbers like Social Security numbers...all this is private
information that's not newsworthy...None of the publishers here today would want
their own banking information posted on the Internet.'

The judge's preruling reply: 'Let me play devil's advocate here. Is it
newsworthy if some prominent citizen is...evading taxes, laundering funds?
Wouldn't that be something in the public interest?'

As this hearing is going into U.S. District Court, it has the potential upon a handful of appeals to become a precedent. That would be a gigantic achievement, because to date the courts have been reluctant to enter new precedents to handle internet law.

Of course, the Wikileaks case is almost a no-brainer. If you can't treat the documents of major corporations committing crimes against the tax code as worthy of a leak to the news world, what can be treated as such?

With any luck, the prior restraint ruling becomes precedent. With less luck, the ruling barring companies from seeking injunctions against registrars will stick, too.

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Wonder where to start with your web design business?

This blog follows along with my efforts to build and grow a website design business, Pro Content and Design.

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Thank you,
John Crawford
Pro Content and Design