On Wed, Feb 20, 2008 at 6:53 PM, marbux <[EMAIL PROTECTED]> wrote: > Reportedly, the judge in the Wikileaks.org case has backed off, > withdrawing at least portions of the injunction and issuing a temporary > restraining order instead requiring Wikileaks to remove all information > about the bank from its site until the hearing on the temporary restraining > order. <http://government.zdnet.com/?p=3663>. > > Correction. There is what appears to be a good discussion of the case on the Citizen Media Law Project blog. < http://www.citmedialaw.org/blog/2008/making-sense-wikileaks-fiasco-prior-restraints-internet-age > According to it, the second order is in addition to the prior order,not a substitution for it. And it's even more draconian from a First Amendment standpoint. The second order is here, < http://www.citmedialaw.org/sites/citmedialaw.org/files/2008-02-15-Amended%20Order%20Granting%20Temporary%20Restraining%20OrderAgainst%20Wikileaks.pdf >.
It applies not only to Wikileaks and the other defendants, but also to anyone who receives "actual notice" of the order. So anyone who reads this email and myself are all subject to that order's requirements, in terms of the way it is worded. IT IS HEREBY ORDERED THAT: 1. DEFENDANTS WIKILEAKS and WIKILEAKS.ORG and DOES 1-10 (collectively the "Wikileaks Defendants"), and all of their respective officers, directors, stockholders, owners, registrants, web host providers, DNS hosts, service providers, website site developers, website operators, website server providers, agents, servants, employees, representatives and attorneys, and all those in active concert or participation with the Wikileaks Defendants, and each of them, *and all others who receive notice of this order*, are, pending hearing on this Court's below issued Order to Show Cause, hereby ordered, enjoined and restrained as follows: (a) RESTRAINED and ENJOINED from *displaying, posting, publishing, distributing, linking to and/or otherwise providing any information for the access or other dissemination of copies of and/or images of the JB Property (as defined herein below) and any information or data contained therein[.] * But the "*and all others who receive notice of this order*," part is way, way, way over the line. Federal Rule of Civil Procedure 65(d)(2) provides: (2) Persons Bound. The order binds *only the following* who receive actual notice of it by personal service or otherwise: (A) the parties; (B) the parties' officers, agents, servants, employees, and attorneys; and (C) other persons *who are in active concert or participation with anyone described in Rule 65(d)(2)(A) or (B).* <http://www.law.cornell.edu/rules/frcp/Rule65.htm> This isn't just a rule of procedure. It's derived from the constitional limits on a federal judge's powers. Basically, the relevant limit of a court's jurisdiction to enjoin behavior is limited to the parties and any co-conspirators. The judge either goofed or knowingly violated the limits of his powers by signing this proposed order. He lacks the authority to order those not acting in active concert or participation with the parties to do or refrain from doing anything. To boot, I'd severely question his order because he places no jurisdictional limits on who is subject to the order. He's issued this order claiming that it applies to everyone on the planet who receives actual notice of the order. I'd say the odds are pretty high that the bank's lawyers deliberately slipped these errors into the proposed order so they can harass anyone they want who even reports the subject matter of the Wikileaks publications relating to the bank. So the prior restraint on speech looks absolutely monumental in scope. The judge purports to censor all speech relating to what Wikileaks had reported that drew the lawsuit. But with a restraining order in place, the order is immediately appealable to the court of appeals and from there to the Supreme Court Justice who handles emergency appeals from the Ninth Circuit. I've seen that kind of thing happen in less than two days, from the district court order clear to the Supreme Court. BTW, I'd say the genie is clear out of the bottle. The press coverage has gone mainstream and even Wired is linking to a torrent of the Wikileaks.orgdocument archive on Pirate's Bay. < http://blog.wired.com/27bstroke6/2008/02/cayman-island-b.html>. Cryptome has a download of the just the bank's records, < http://cryptome.org/wikileaks-bjb.htm>. Cryptome also links to this site, < http://binaryfreedom.info/node/312>, which has links to a hundred or so Wikileaks mirrors and downloads for the bank documents. All are acccessed from the links in the Wired article, so I'd say it's almost certain that Wired is daring the bank to try to enforce the order against them. The story probably has massive legs because the mainstream press is absolutely hostile to prior restraints. I expect some publishing industry heavies to formally intervene in the lawsuit as full parties. They have legal standing to do so because the temporary restraining order is so broad that it prohibits them from covering the alleged misconduct by the bank that led to the lawsuit. In short, a legal donnybrook brewing for the bank and its lawyers: *[T]he only principle recognized—if it can be called a principle—was akin to that recommended to the traditionary Irishman on his visit to Donnybrook Fair, "Wherever you see a head hit it".* —Walter Bagehot, *The English Constitution *(1867), < http://manybooks.net/titles/bagehotwetext03thngl10.html>. Best regards, Marbux
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