Sunday, March 02, 2008

Free Speech, Privacy and Wikileaks [International]

Free speech advocates immediately hailed as a victory the decision on Friday of a federal judge to withdraw a prior order turning off the Web address of the site But the reasoning of United States District Judge Jeffrey S. White also means that the court may dodge having to grapple with some of the meaty First Amendment questions posed by the case and touched on repeatedly at a lengthy hearing in San Francisco.

The lawsuit, brought by a Swiss bank and its Cayman Islands subsidiary against Wikileaks and Dynadot, the San Mateo, Calif., company that is the registrar for the domain name, became a cause célèbre for organizations like the American Civil Liberties Union, Public Citizen and the Electronic Frontier Foundation. Such organizations responded with a barrage of court filings in the wake of an order signed by Judge White last month that required Dynadot to disable the address, making it more difficult – but far from impossible – for Internet users to get to materials published by Wikileaks.
The bank, Bank Julius Baer & Co., claimed that Wikileaks had displayed confidential, personally identifiable account information of its customers, as a result of possibly criminal actions by a former employee. Lawyers for the bank on Friday repeatedly told Judge White that Julius Baer clients had a right to keep their account information private and that there was no compelling interest to justify their disclosure. In this way lawyers for the bank set up a conflict between freedom of speech and the right to personal privacy.
After hours of discussion that suggested the judge’s level of concern with reaching the correct outcome, Judge White looked unhappy that he could not think of a way to help the bank customers affected by the release of the documents. But he said that he feared the initial order suspending raised serious questions of unjustified prior restraint on free speech, and that in any event, once the documents were online, the court might well be powerless. “Maybe that’s just the reality of the world that we live in,” Judge White said. “When this genie gets out of the bottle, that’s it.”

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