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Berkman Center’s Citizen Media Law Project and Cyberlaw Clinic Challenge Injunctions Against Wikileaks and Dynadot

The Berkman Center's Citizen Media Law Project (CMLP) and Cyberlaw Clinic have joined a coalition of media and public interest organizations in filing an amici curiae brief urging a federal district court judge to reconsider his orders shutting down, a site that is developing what it describes as an "uncensorable Wikipedia for untraceable mass document leaking and analysis."

Filed yesterday in San Francisco, the brief opposes two broad injunctions issued by Judge White of the U.S. District Court in the Northern District of California on February 15 against Wikileaks and its domain registrar, Dynadot LLC. As a result of the judge’s permanent injunction against it, Dynadot has disabled the entire domain name and removed all DNS hosting records for the site.  The judge has also ordered that Wikileaks and “all others who receive notice” of the order refrain from publishing, linking to, or otherwise using certain documents allegedly leaked by a former Bank employee.

Cayman Islands-based Julius Baer Bank and Trust and its Swiss parent company initiated the case in order to prevent Wikileaks from publishing copies of “stolen or otherwise wrongfully obtained confidential and protected bank files and records.”  Wikileaks has acknowledged releasing “several hundred documents from a Swizz banking whistleblower purportedly [dealing with] extremely wealthy and in some cases, politically sensitive, clients from the US, Europe, China and Peru.”

“Under established First Amendment law, prior restraints, if constitutional at all, are permissible only in the most extraordinary circumstances," said David Ardia, Director of the CMLP, who assisted in forming the coalition of media and public interest organizations.  “In this case, you have court orders that effectively shut down a website that has been at the forefront of exposing corruption in governments and corporations around the world and enjoin anyone who reads the order from publishing or even linking to the documents.”  David also has a substantive post on the case up on the CMLP blog.

The brief, which was filed by attorneys from Davis Wright Tremaine, is the result of close collaboration among members of the media coalition.  Some of the legal arguments were prepared by the CMLP and Berkman Cyberlaw Clinic, with substantial help from Cyberlaw Clinic and Harvard Law School student Savith Iyengar.

“Given the critical importance of the First Amendment interests in this case, and the damage to those interests that would be caused by such overbroad injunctions, we felt it was vital to help the coalition present arguments to the court showing that there was no legal basis for the banks’ claims against Wikileaks and Dynadot,” said Phil Malone, Director of the Cyberlaw Clinic.

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Other members of the media coalition include: American Society of Newspaper Editors; The Associated Press; E.W. Scripps Co.; Gannett Co.; The Hearst Corporation; Los Angeles Times; National Newspaper Association; Newspaper Association of America; Radio-Television News Directors Association; Reporter's Committee for Freedom of the Press; and The Society of Professional Journalists.

Other briefs filed yesterday include a submission by the ACLU and Electronic Frontier Foundation, and a motion to intervene in the case filed by Public Citizen and the California First Amendment Coalition that argues that the court did not have jurisdiction in the case, and therefore had no power to issue the injunctions.

To follow the case and future developments, visit Julius Baer Bank and Trust v. Wikileaks, CMLP's database entry on the issue.

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