ACLU And EFF File To Intervene In Internet Free Speech Lawsuit

February 27, 2008 12:00 am

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Update – 2/29/2008
The Court has dissolved the permanent injunction locking up the domain name. The judge also denied the Bank’s motion for a preliminary injunction that would have required Wikileaks either to take the documents down in their entirety or to redact (black-out) some of the information. More

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Order To Shut Down Violates First Amendment, Groups Say

SAN FRANCISCO – The American Civil Liberties Union, the ACLU of Northern California and the Electronic Frontier Foundation (EFF) last night filed a motion to intervene in a lawsuit that led a federal district judge to order the domain name shut down. The motion is on behalf of organizations and individuals that have accessed and used documents on the website in their work and want to continue to be able to do so.

“The court’s order shuts down and locks up the domain name permanently, effectively interfering with the public’s ability to access the materials on the website as easily as possible,” said Aden Fine, senior staff attorney with the ACLU First Amendment Working Group. “The public has a right to receive information and ideas, especially ones concerning the public interest. This injunction ignores that vital First Amendment principle.”

The Wikileaks website was established to allow participants to anonymously disclose documents of public interest, including materials discussing such issues of national importance as U.S. Army operations at Guantánamo Bay, Cuba, human rights abuses in China, and political corruption in Kenya. Earlier this month, Judge Jeffrey White of the Northern District of California ordered domain registrar Dynadot, LLC to shut down the domain name based on allegations that a former employee of Swiss Bank Julius Baer posted documents on the website that highlighted the bank’s dealings in the Cayman Islands.

The permanent injunction has the effect of blocking access to all of the content contained on the website accessed through the domain name, even though the overwhelming majority of those documents and materials are unrelated to the Bank Julius Baer complaint and concern matters of significant public interest.

“The Supreme Court has warned against ‘burning down the house to roast the pig,'” said Steve Mayer, a partner with Howard Rice Nemerovski Canady Falk & Rabkin who is working on the case. “But that is what has happened in this case, with the result that our clients, and others like them, are being denied their right to receive ideas and information. Without that right, freedom suffers.”

In November 2007, a manual documenting U.S. Army operations at the Guantánamo Bay prison was posted on the Wikileaks website; the government had resisted releasing the manual in response to a 2003 Freedom of Information Act request filed by the ACLU. The manual includes details about limiting Red Cross access to prisoners and instructions for using dogs to intimidate prisoners, raising concerns about the treatment and psychological manipulation of prisoners at Guantánamo.

“Journalists, academics, and the general public have a legitimate interest in accessing the materials found on Wikileaks in order to inform their work and participate in public debate,” said Ann Brick, staff attorney with the ACLU of Northern California. “Blocking access to the entire site in response to a few documents posted there completely disregards the public’s right to know. It’s unconstitutional and un-American.”

The ACLU and EFF are seeking to intervene on behalf of themselves; the Project on Government Oversight, which works to investigate systemic waste, fraud, and abuse in all federal agencies; and Jordan McCorkle, a student at the University of Texas who uses the website on a regular basis.

In addition to Fine and Brick, attorneys on the case are Steven L. Mayer, Christopher Kao and Shaudy Danaye-Elmi of the San Francisco law firm of Howard, Rice, Nemerovski, Canady, Falk & Rabkin, and Cindy A. Cohn, Matthew J. Zimmerman and Kurt Opsahl of EFF.

The ACLU’s motion is available online here:

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