Judge Backtracks: WikiLeaks Resumes U.S. Operations

By David Kravets
Wired
Mar. 01, 2008

SAN FRANCISCO -- A federal judge on Friday allowed whistle-blower site WikiLeaks to resume operation in the United States, a week after ordering its U.S. hosting company and domain registrar to shut down and lock the renegade's site from the internet.

The judge conceded the futility of attempts to censor information, in this instance private banking records, after it has been posted to the internet.

"When this genie gets out of the bottle, it's out for all purposes," U.S. District Judge Jeffrey White said after a more than 3-hour-long hearing here. Earlier, White said he had "an obligation to get it right" and that "I took an oath to uphold the Constitution."

White signed an order last week that effectively took down the WikiLeaks site in the United States and also locked "the WikiLeaks.org domain name to prevent transfer of the domain name to a different domain registrar."

WikiLeaks, a whistle-blower site publishing thousands of leaked documents, was taken offline in the United States after posting allegedly stolen documents: individuals' banking records that suggest a Cayman Islands branch of a Swiss bank was helping customers practice money laundering and tax evasion across the globe.

Dynadot -- WikiLeaks' U.S. hosting company and domain registrar based in San Mateo, California -- agreed to take down and lock the site at the behest of Julius Baer Bank and Trust. Judge White, appointed by the second President Bush, signed off on the deal last week. While users could not get to the site using the wikileaks.org domain name, the site was still reachable by users who knew its IP address, which supporters spread around the web.

The judge held a hearing here Friday to reconsider his initial decision because federal law required it, and because he was having second thoughts. "There are serious questions of prior restraint, possible violations of the First Amendment," he said from the bench. (Hours later, he issued this ruling.)

The site resumed U.S. operations shortly after 5 p.m. Pacific Coast time. Its overseas servers were not affected by the litigation. Hours after the decision, WikiLeaks said it "shall not be cowed by those who would silence the truth. It will continue to be a forum for the citizens of the world to disclose issues of social, moral and ethical concern."

The judge heard arguments from the bank, which said no First Amendment rights were being implicated, WikiLeaks' domain name owner and a host of media and civil rights organizations that derided the judge's initial order as an unconstitutional "prior restraint" on speech.

The judge seemed to agree with the media and rights groups. About 30 minutes into the hearing, White said the case concerned "very important issues" and "the court does not want to be a part of any order that is not constitutional."

Garret Murai, Dynadot's attorney, told the judge the company was not inserting itself in the battle. "Dynadot's position, your honor, we are not taking a position on the merits of the litigation. We're willing to comply with any order the court issues."

Evan Spiegel, one of the banks two attorneys at the hearing, said the bank "wanted nothing more" than for WikiLeaks to take down the documents in question. "That's been the point of the bank all along," he said. He added that the First Amendment to the U.S. Constitution does not afford the right to publish private banking information.

The media groups, however, contended that the American courts had no authority to order WikiLeaks to remove published material -- a term of art known as "prior restraint." The media argued that the bank's "remedy" is to seek damages from WikiLeaks.

Still, the judge cautioned that he is likely to toss the entire case. He said the American courts may not be the proper venue for a Swiss bank to sue the WikiLeaks.org domain name owner -- John Shipton, an Australian citizen living in Kenya.

The judge added that the bank "should take a breath" and consider whether it wishes to continue pursuing the litigation, especially because the genie is out of the bottle.