"It's the strangest set of orders I've ever seen," said David Ardia, the director of the Citizen Media Law Project at Harvard Law School. "Ordering the takedown of a Web site is practically unheard of," he added. "It's not the way our court system is supposed to function."
In the year since Wikileaks launched, more than 1 million supposedly confidential documents exposing matters ranging from the treatment of prisoners at Guantanamo to corruption in Kenya have been posted on the site.
The papers that landed the site in federal court purportedly reveal money laundering and fraud by the Cayman Islands branch of Swiss bank Julius Baer.
Judge Jeffrey White in San Francisco issued two orders Friday aimed at censoring the site. In one, he directed Wikileaks to remove the documents Julius Baer objected to. Wikileaks wasn't in court to argue against the injunction. Company executives reportedly said they were only given a few hours notice about the hearing.
Harvard's Ardia said that even though Wikileaks didn't appear in court, he was still surprised the judge issued such a broad ruling. "There's a presumption of unconstitutionality when you're talking about prior restraints," Ardia said. "The judge should have done a document by document analysis on the record and made clear what the irreparable harm was based on its scrutiny of the documents."
John Morris, senior counsel for the Center for Democracy & Technology, said that orders like the one issued rarely hold up on appeal. "Prior restraints are very, very disfavored under the First Amendment," he said. "The great majority of prior restraints that have been entered have been reversed by an appellate court."
The second injunction requires domain registrar Dynadot to take down the site, return blank pages when users attempted to access the domain name Wikileaks.org, and turn over information about the account holder. The case against Dynadot was dismissed as part of the order.
While the order says that Dynadot agreed to those terms, Dynadot's law firm Wednesday issued a written statement denying having consented to portions of the injunction. "The only agreement by Dynadot was to comply with the Court's previous order to preserve evidence, including preventing Wikileaks from transferring its domain name to another registrar and from changing its account settings--essentially, to preserve the status quo," Dynadot attorney Garret D. Murai said in a statement. "Dynadot did not agree to remove the name server settings for wikileaks.org or to produce any information. This was requested by Julius Baer and granted by the Court."
Still, to advocates, Dynadot's role in the case is troubling for several reasons. Electronic Frontier Foundation lawyer Matt Zimmerman said the decision to haul Dynadot into court potentially encourages companies to target registrars or other intermediaries--who don't necessarily have an incentive to contest the case--as opposed to the person who has allegedly harmed them.
The Center for Democracy & Technology's Morris added that Julius Baer had no valid grounds to sue Dynadot in the first place. "I don't know what possible liability the domain name registrar could have had to the bank in this case," he said. "As far as I'm aware, under U.S. law they have no liability for the content that a customer of theirs puts on their domain name."
In fact, some people are predicting that far more Web users will now learn of the matter than if Julius Baer had not gone to court. "It's very common that efforts by companies to squelch and suppress information lead to the information being far more noticed, and far more available, than before the effort to squelch it," Morris said.
The court scheduled further proceedings for Feb. 29.