California Courts Remain Clueless About Prior Restraints
[posted by Justin Levine]
Disturbing news here.
How do courts get away with this? Perhaps they actually think that corporate secrets should have greater legal protection than classified government documents(?).
‘Broken clock being right twice a day’ alert: Daily Kos happens to be right on the money here.
I at least understand the argument when the issuance of a prior restraint concerns classified information that could directly lead to people being put in physical harm. But embarrassing bank officials over misconduct? Please…
One question:
What is the name of this idiot judge?
Ok, more then one question:
What can we do to get this incompetent clown removed from the bench for blatent abuse of power?
evilned (429c11) — 2/18/2008 @ 12:40 pmAt some point, if he is a CA judge, he has to stand for re-election. That is the time to mount a campaign against him to deny him continuance on the bench.
Another Drew (f9dd2c) — 2/18/2008 @ 1:08 pmDumb question borne of my ignorance of the field:
If the posters of the docs are anonymous and unfindable, and intentionally make themselves unavailable for service of process, and the complainant says “imminent harm!”, does the “prior restraint” prohibition really apply? If they’ve tried to locate/contact/involve the responsible party, and the responsible party has intentionally evaded, then rigid adherence to the “prior restraint” prohibition may simply be impossible.
As a practical matter, the courts or legislatures aren’t going to let cyber-publishing trump any and all protections against theft of intellectual property, defamation, etc. New paradigms of info-dissemination may require new definitions of old concepts – I think we either find a way to make the concept of “prior restraint” workable in an anon-all-over-the-world-in-.1-seconds environment, or watch mutely as others pronounce that the prohibition against prior restraint is no longer workable and so should be completely abolished.
bobby b (361921) — 2/18/2008 @ 1:37 pmI assume this relief was granted on a temporary basis since it was granted without notice. If so, I further assume the standard is whether the claimant made a showing of imminent harm and a likelihood of prevailing on the merits. That means there was some basis for relief.
Also, I wonder if the court’s willingness to allow relief was due to the claim that the website affected a Swiss court proceeding? There may be some international laws or treaties involved.
On the other hand, I recall a local federal case where the initial injunction was quickly dissolved after the responding party appeared and provided the court with better information. In that case, the court was not pleased with the party that initially obtained relief and, as a result, it was at a serious disadvantage for the rest of the case.
DRJ (3eda28) — 2/18/2008 @ 1:39 pmNonetheless, DRJ, there is Near v. Minnesota – which this is clearly within.
SPQR (26be8b) — 2/18/2008 @ 2:02 pmWhat DRJ said. I have both brought and defended motions for PROs, although not restraint of speech or of the press ones, and I have seen at least one judge change his tune from “Counsel, just be grateful I allowed you notice in the first place” to “Won’t you please settle this case and get it out of my courtroom?” just as soon as I made a record. Wikileak will lose only if it does not defend.
nk (6ef207) — 2/18/2008 @ 2:12 pmThey told me that I voted for George W. Bush whistle-blowing websites would be censored and crushed…and they were right!
/snark–OFF!
MarkJ (42fe5b) — 2/18/2008 @ 3:35 pm“All it takes for evil to prevail, is for good men to do nothing.”
Another Drew (f9dd2c) — 2/18/2008 @ 4:14 pmIt is really somewhat of a logical stretch to describe this as a prior restraint. Although the analogy is not perfect, it would be more like shutting off the electricity to a newspaper printing plant for non-payment of the electric bill.
In this case, the Bank Julius Baer entities filed an action in federal court in the Northern District of California against (a) WIKILEAKS, an entity of unknown form; (b) WIKILEAKS.ORG, an entity of unknown form; and (c) DYNADOT, LLC, a California limited liability company. Since I don’t have a PACER account, I can’t tell what relief the complaint actually sought. However, it is almost certain that the only defendant who was served and appeared was Dynadot, LLC.
Let’s look at this situation from Dynadot’s perspective. They get 9 bucks per year to register domain names (such as wikileaks.org). Now, all of a sudden, they are facing thousands of dollars in legal fees defending a claim in federal court as to which they really could care less. They are not in business to be a champion of whistleblowing or first amendment rights or anything of the kind. The cost of responding to this complaint would easily wipe out all the profitability from hundreds of other domain registrations.
Meanwhile, since Wikileaks is a deliberately anonymous and difficult-to-locate entity, it is not surprising that its representatives received little or no notice of the court proceedings. Presumably Dynadot notified them at their registered contact information, via e-mail, but it is unlikely that anyone from that organization actually appeared.
Getting back to Dynadot: If Dynadot’s lawyers conversed with the Julius Baer lawyers, and were advised that they could get out of the case — dismissed with prejudice — if they would stipulate to a permanent injunction requiring them to disable the wikileaks.org domain name, is it any surprise that they would jump at that chance? I wouldn’t even be surprised if the Julius Baer side helped out with Dynadot’s legal expenses.
The injunction appears to be permanent, and it seems unlikely that any further proceedings will be taken in the case, unless some third party comes along to intervene and challenge these events.
The only legal questions I see in these events are the following:
(a) Is the first amendment implicated in the private decision by a domain registrar to cave in and kill a domain when faced with significant legal costs that probably will never be recovered from their registration customer?
(b) Is there any kind of jurisdictional issue implicated where a court (whether state or federal) injects itself into the status and registration of a domain name? In other words, is there anything about the domain name registration scheme that somehow preempts a court’s power to order a private party — Dynadot, LLC — to pull the plug on a domain name?
I think both of these issues (especially the second one) are extremely shaky. As a practical matter, who is going to step forward to try to pursue them? It would have to be an entity such as the Electronic Freedom Foundation or the Electronic Privacy Information Center, I would think, and the entity would have to satisfy standing rules in order to intervene.
You might fault Dynadot for its “cowardice” in choosing not to spend tens of thousands of dollars resisting the Julius Baer side in this litigation, but I don’t find it surprising at all. Domain registrars get only pennies for their services. Why would they invest thousands of dollars in “protecting” the right of one customer to keep a working domain? Would they somehow become internet heroes, attracting lots and lots of new business? This seems unlikely to me.
VG
Voiceguy in L.A. (51a3f5) — 2/18/2008 @ 4:43 pmThink the decision would be similar if the publisher had been a newspaper? I doubt it. In fact, let’s see the LA Times pick up the ball and run with it–this allegedly involves criminal conduct by Big Business–right up their alley.
ManlyDad (22e85d) — 2/18/2008 @ 5:01 pmA footnote —
I see that Judge White’s 9:00 AM calendar on February 29th includes a hearing on “Order to Show Cause re Preliminary Injunction” in the Wikileaks matter. Without access to the docket and pleadings it’s hard to be sure, but I suspect this preliminary injunction would be directed against the remaining defendants (the Wikileaks entities), probably ordering them to stop publishing the Julius Baer documents. If, as I assume, these entities have not been located or served, and have not appeared in the case, the judge may nonetheless enter a preliminary injunction of some kind, but it’s questionable what kind of legal effect it really has.
As far as anyone knows, this case actually has nothing to do with the Northern District of California, or indeed the United States. It is a Swiss bank and its Cayman Islands subsidiary complaining about activities that almost certainly took place overseas. The only apparent U.S. connection is the domain name registrar.
VG
Voiceguy in L.A. (51a3f5) — 2/18/2008 @ 5:07 pmIs this the notorious 9th curcut court working its idiotic rulings again?
krazy kagu (a97175) — 2/18/2008 @ 5:14 pmVoiceguy, if the actual defendant has no legal notice and therefore no legal opportunity to defend on the merits, I cannot see how you conclude that it is not a prior restraint.
SPQR (26be8b) — 2/18/2008 @ 5:29 pmVoiceguy in L.A. –
You state: “It is really somewhat of a logical stretch to describe this as a prior restraint.”
Huh?? If this were the case of a private entity caving because they would rather not bother with a lawsuit, then maybe you’d have a point. But the evidence suggests that they took down the site as a direct result of court ordered injunction.
http://wikileaks.cx/wiki/images/Dynadot-injunction.pdf
This is a classic prior restraint. How is it a “stretch” to say otherwise?
As to your other question – (“a) Is the first amendment implicated in the private decision by a domain registrar to cave in and kill a domain when faced with significant legal costs that probably will never be recovered from their registration customer?”
Fair question. I’d say that the First Amendment is clearly implicated to the same extent as N.Y. Times v. Sullivan that reigned in abusive libel suits. You could argue that the N.Y. Times should have made a “private decision” not to run articles criticizing public officals because they would be faced with “significant legal costs that probably would never be recovered” from their ad revenue – but the practical threat to First Amendment freedoms was obvious in the Sullivan case as it is here. Had the N.Y. Times made a corporate decision not to run any articles against public figures if they merely threatened a lawsuit and invoked the power of the third branch of government – would you characterize that merely as a private business decision? Or would you feel that the First Amendment is implicated?
It is common knowledge in legal circles that “equity will not enjoin a libel”. Why the court has enjoined Wikileaks in this instance is beyond me.
Justin Levine (20f2b5) — 2/18/2008 @ 5:31 pmSPQR,
I assume his point is that notice was given through Wikileaks’ agent, Dynodot, and that was enough since Wikileaks chose to be anonymous.
DRJ (3eda28) — 2/18/2008 @ 5:32 pmDRJ, since it appears insufficient to allow default judgment, I find myself unconvinced.
SPQR (26be8b) — 2/18/2008 @ 5:56 pmYou may be right. I haven’t even looked at the pleadings and I admit I’m speculating based on what I’ve read here and elsewhere. I also don’t know anything about the Judge that heard this or the lawyers who brought the proceeding, both of which might make a difference.
My concern was that if a federal judge entered the order, I would be leery of assuming there was no basis for it at all.
DRJ (3eda28) — 2/18/2008 @ 6:00 pmGoogle looks pretty clueless, too.
DRJ (3eda28) — 2/18/2008 @ 7:07 pmIf this were the case of a private entity caving because they would rather not bother with a lawsuit, then maybe you’d have a point.
This seems to be exactly what has happened, judging only by the documents made public by Wikileaks.
I say again: Dynadot is not a newspaper or broadcaster. It has no stake in keeping any particular website alive. The advantage to it in stipulating to the entry of an injunction ordering it to take down the DNS information is that it now can avoid any potential claim against it by its own customer. “We had no choice,” the company will say. “The court ordered us to do it.”
The New York Times v. Sullivan decision really does not affect the analysis here, because it had nothing to do with prior restraints. It had to do with the level of proof, judged at the earliest stages of litigation, that a libel plaintiff who was a public figure would have to proffer in order to pursue a claim against a media defendant.
It’s difficult to apply classic “prior restraint” analysis to a web site that has already published the content in question. In its purest form, a prior restraint would be an order directing the defendant not to publish the material in the first place. It would be based on the specific content that was claimed to be objectionable. Here, however, it appears that the material that the plaintiffs objected to had previously been published.
I agree that shutting down an entire web site because of one item published on it is almost certainly overreaching. But this is a quirk of the way domains are handled, which led me to raise my second (jurisdictional) question above. Institutionally, it is way too easy for a determined plaintiff to shut down an undesired web site, because the controls are in the hands of someone who has no incentive to fight on behalf of the web site and every incentive to cave in (as Dynadot did).
I am bothered by many aspects of the case, but not the supposed prior restraint aspect. I am bothered that the U.S. court system is being invoked to referee what is essentially a foreign dispute. I am bothered that the lawsuit seems collusive between the plaintiffs and Dynadot, in the sense that Dynadot could so conveniently sell its customer down the river by stipulating to this injunction. It bothers me that the claims against the other (non-appearing) defendants — who probably have no presence in the U.S. and therefore are not subject to the jurisdiction of a U.S. court — may sound in something that sounds like a request for prior restraint.
I am not intimately familiar with the court proceedings that Apple brought to try to stamp out revelation of its trade secrets on web sites that apparently depended on leaks from insiders. If I have time, I will see if there is any published information as to whether Apple sought to have those sites ordered not to publish information alleged to be trade secrets and, if so, with what result. All I remember from those cases is that Apple was trying to conduct discovery to determine who the leak sources were.
VG
Voiceguy (51a3f5) — 2/18/2008 @ 7:14 pmDRJ, Google used to have a corporate culture that affirmatively expressed a duty to act with integrity.
They still claim it to be part of the culture but their actions belie it.
SPQR (26be8b) — 2/18/2008 @ 7:15 pmVoiceguy L.A. –
I remnain perplexed by your analysis. Please read thgis document that was apparently signed by the judge:
http://wikileaks.cx/wiki/images/Dynadot-injunction.pdf
Is this not an injunction ordering the owner of the website to remove the information? If so, is that not a prior restraint since everyone agrees that there has been no hearing on the actual merits of the case?
You write: “The New York Times v. Sullivan decision really does not affect the analysis here, because it had nothing to do with prior restraints.”
Well according to your own argument, neither does the Wikileaks case – so which is it?
I cited Sullivan to your question on if the First Amendment is implicated by a purely private decision not to publish information because they faced a lawsuit over it. I find it frustrating that you can’t see the obvious paralell (and would also suggest that you read up on California’s anti-SLAPP law which certainly concerns itself with First Amendment rights). But if you still fail to comprehend my point, I’ll just leave it to others to figure it out.
Justin Levine (20f2b5) — 2/18/2008 @ 8:33 pmYup. Voiceguy is as wrong as one could possibly be. I wonder though, could he get my electricity cut off from a suit he brought against ComEd which is powering my computer, because I’m using my computer to say so? If he had an idiotic enough judge and I did not defend, probably.
nk (798403) — 2/18/2008 @ 8:45 pmHelp. Please explain this to a foreigner.
From my perspective I see some jerk ripping off/libeling a private entity, and said private entity getting upset. Upset enough to sue and get an injunction.
Is that bad?
How about if I steal your private records and post them on the Internet? Or maybe I make some records up, you know like Dan Rather, and I post those? Perhaps those records about how many times you took and failed all of those bar exams?
BlacquesJacquesShellacques (324683) — 2/18/2008 @ 8:49 pmBJS,
The remedy is to sue for libel. (Except in Britain and some of the remaining English colonies, where prior restraint is an option.) American law is not based on preventing harm as much as remedying it once it’s happened. That may seem harsh but capitalism is harsh, too, and our system is predicated on the idea that people should be free to act. However, if their actions hurt others, they may subject themselves to successful claims for damages.
DRJ (3eda28) — 2/18/2008 @ 8:58 pmBlack Jack Shellac,
What DRJ said plus … prior restraints on speech or press have been upheld in America only seven times in her history and the test is “clear and present danger”.
We are not Canada where some jihad monkey, worshipping some some child-molesting ex-camel herder, can bring suit against anyone who hurt his feelings for making fun of his child-molesting ex-camel herder.
nk (798403) — 2/18/2008 @ 9:08 pmBlacquesJacquesShellacques:
Here is the crucial difference that you aren’t picking up on – You CAN get an injunction against speech when you sue for libel, but only AFTER you have actually PROVEN your case in court.
What we are talking about here is a ‘prior restraint’ – a scenario wherein a court orders an injunction based on MERE ALLEGATIONS, before a full trial has been conducted on the merits of the case.
Big difference between the two. Most Americans feel that it is very dangerous to take an attitude of ‘censor first and find out the truth later’.
Justin Levine (20f2b5) — 2/18/2008 @ 9:42 pmNope. No injunctions for libel even if libel is proven on the merits. The test is “clear and present danger” i.e. inciting a mob to overthrow the government by force or violent means. You can go on lying about somebody all you want and all he can do about it is sue you for the “actual” pecuniary damage you have caused him. Falwell vs. Flint (Hustler magazine) is illustrative.
nk (798403) — 2/18/2008 @ 9:55 pmBlacquesJacquesShellacques, with respect to your hypo about records: in some cases where someone steals a private record, the courts may order an injunction to prevent publication but that is a very narrow area of law in the US that falls under trade secret law. But a fundamental element of trade secret law is that the defendant is bound by a contractual or statutory relationship to keep the information secret.
Under US trade secret law, I can’t sue a random person who did not breach such a contractual obligation and stop them from publishing something I claim is my secret.
SPQR (26be8b) — 2/18/2008 @ 10:31 pmIs this not an injunction ordering the owner of the website to remove the information?
No, for at least the following reasons:
(a) The injunction is not directed to the owner of the web site. It is directed to the domain registrar.
(b) It does not require any content to be altered or removed from any web site.
(c) Rather, it requires the domain registrar to delete the name server entries for that particular domain name.
The web site is still in existence somewhere, on some server, so far as we know. However, the only way to find it in the absence of DNS entries — the cross-references that resolve a domain name to its IP address — is to know the actual IP address for the web server.
This may seem like a technicality, but it really is not. It has the effect of making it very, very difficult to find this web site, but it does not literally order the web site owner to do anything.
You write: “The New York Times v. Sullivan decision really does not affect the analysis here, because it had nothing to do with prior restraints.”
Well according to your own argument, neither does the Wikileaks case – so which is it?
No, what I said is that the judge’s injunction requiring the domain registrar to delete the DNS entries for this web site does not seem analytically like a prior restraint. That doesn’t mean I am not troubled by it, as I thought I had made clear — it just means that the “prior restraint” analytical peg is not going to take anyone very far in a court of law.
I cited Sullivan to your question on if the First Amendment is implicated by a purely private decision not to publish information because they faced a lawsuit over it.
I believe the problem is that we are talking about apples and oranges. Dynadot, the domain registrar, is not trying to publish anything. It has no stake in the content of any of the web sites for which it is a domain registrar. All it does is collect $9.00 per year to administer an entry in the internet domain name system. Its decision to stipulate to kill the DNS entry for one of its customers was, as I explained, surely a matter of economic expediency.
The reality is that domain registrars effectively shut down web sites all the time, by wrecking the DNS entries, whenever the registrars deem that the registrant has violated the registrar’s terms of service. GoDaddy.com is notorious for doing this without notice if it considers the site owner to be a spammer. It bothers me that a domain registrar has so much power and so little accountability, which makes it easy for plaintiffs such as the ones here to effectively silence a site, but I don’t view this as a First Amendment problem at its essence.
But the formalities matter, and I stand by my earlier analysis.
VG
Voiceguy in L.A. (51a3f5) — 2/18/2008 @ 11:23 pmA bit off the topic… I too am disturbed by this ruling – but as the point of the internet from its inception was to provide complete redundancy and immunity from any specific point attack, I simply went to one of the other wikileaks sites and saved the Julis Baer related documents onto my computer. An effective way to fight this type of offense is to make it clear that trying to prevent people from seeing documents like these makes it all the more interesting to read them. Had this simply been a libel suit, I probably wouldn’t have been interested. You want to hide something? Watch as your strong arm tactics entice hundreds of thousands to view your little secret.
Apogee (366e8b) — 2/19/2008 @ 3:25 amSection 7 of Dynadot’s service agreement (which is posted here ) provides:
You further agree that Dynadot, in its sole discretion and without liability to You for any resulting loss or damages, may delete, suspend, cancel, terminate, or otherwise interrupt any and all services You may purchase through Dynadot, or Your customer account with Dynadot, at any time during the term of this Agreement, if such service or account is used in association with morally objectionable activities.
Morally objectionable activities include, but are not limited to, the transmission of unsolicited mail or “spam”; activities prohibited by the laws of the United States and/or foreign territories in which You conduct business; activities that promote unlawful behavior, such as hate crimes, terrorism, or child pornography; activities that are designed to or that effectively defame, slander, harass, embarrass, threaten, abuse, or harm third parties; activities that impersonate the identity of any third parties; activities that are harmful to minors in any way; activities that constitute fraud or that have a fraudulent purpose; activities that are designed to or that effectively infringe upon the copyright, trademark, trade secret, or other intellectual property rights of a third party; and activities that constitute or promote obscenity, profanity, indecency, tortuous behavior, racism, bigotry, hatred, vulgarity, harassment, invasion of privacy or publicity rights of a third party, or physical harm of any kind against any group or individual; or any other objectionable material or activity of any kind or nature as Dynadot in its sole discretion may determine.
You agree that any use of Your account with Dynadot, whether or not on Your behalf and whether or not with Your permission, in association with any morally objectionable activities shall constitute a material breach of this Agreement. In the event that Dynadot deletes, suspends, cancels, terminates, or otherwise interrupts any service to You or Your customer account for use in association with morally objectionable activities, any and all fees paid to Dynadot shall be non-refundable and ineligible for account credit.
Presumably, the stipulation between the bank plaintiffs and Dynadot recited something to the effect that the plaintiffs asserted that Wikileaks’s activities has a tendency to “defame, slander, harass, embarrass, threaten, abuse, or harm third parties” and constituted unauthorized disclosure of “trade secrets,” in violation of the Service Agreement, thereby constituting grounds to declare a breach of the agreement.
What I am troubled by, however, is that the court injunction goes further and “blackholes” this domain, by requiring Dynadot to prevent the domain from being re-registered and reactivated by any other registrar. It seems to me that ICANN ought to be very concerned about this kind of thing.
VG
Voiceguy in L.A. (51a3f5) — 2/19/2008 @ 7:53 amVG –
Your analysis is pure silliness. It’s like saying that the injunction doesn’t tell the NY Times not to publish a story – it only uses the power of the state to direct the delivery trucks to deliver all copies of the paper to a bank safe where no reader can reasonably get to them, Your telling me that wouldn’t be a considered a prior restraint? Your argument offers a distinction without a difference.
Your comment in # 31 is also misplaces. Are you honestly arguing that Dynadot’s actions were NOT due to the court order? This wasn’t a private decision that Dynadot undertook on its own in accordance with its internal corporate policies. It was responding to a COURT ORDER. There is a big difference between the two.
Honestly – the thickheadedness of some blog commenters is astonishing.
Justin Levine (b5c8e2) — 2/19/2008 @ 9:08 amHonestly – the thickheadedness of some blog commenters is astonishing.
And the rudeness of others is equally astonishing. I see no point in commenting further if all I will be subjected to is personal insults.
VG
Voiceguy in L.A. (51a3f5) — 2/20/2008 @ 6:54 amMy final word here:
Although the federal court ordered the DNS entries for wikileaks.org to be killed, the site can still be accessed by entering its IP address in a web browser: 88.80.13.160
Also, offshore mirrors are still operational at wikileaks.be, wikileaks.in and wikileaks.cx.
In effect, the court’s order has closed the front door to the Wikileaks site, but there are many other doors still open.
If Bank Julius Baer was trying to put a lid on disclosures, their effort has backfired more spectacularly than anyone could have imagined.
VG
Voiceguy in L.A. (51a3f5) — 2/20/2008 @ 8:23 amVoiceguy,
It’s really pretty straightforward. The plaintiffs did not sue Dynadot to shut down Wikileak because Wikileak violated its contract with Dynadot. They have no standing to do that in the first place. They sued on the basis that Wikileak’s content was causing them harm. The remedy is an injunction that takes that content away from people who want to see it. Dynadot’s motives for rolling over are no more relevant to whether the injunction is a prior restraint on speech and on the press than a U.S. Marshall’s motives in seizing every copy of the New York Times, arresting every employee and padlocking the building pursuant to a court order would be.
And yeah, Justin has that LA talk-radio manner. I’ve been the target of it, myself. Just go along. It fits in the spectrum of DRJ’s impeccable manners, Patterico’s curt didacticism* and WLS’s impatience.
*Which is not invariable and often relieved with humor.
nk (798403) — 2/20/2008 @ 9:03 amThe judge has reversed himself.
nk (b63350) — 2/29/2008 @ 8:35 pm