• by Wendy Davis  @wendyndavis, February 29, 2008

A broad array of civil rights groups and news organizations today will ask a federal judge to vacate an injunction ordering the takedown of the whistle-blower site Wikileaks.org.

The groups are arguing that the Feb. 15 order, issued by federal district court judge Jeffrey White in San Francisco, infringes on First Amendment freedom of speech rights.

White ordered the domain registry Dynadot to take down the site after Swiss bank Julius Baer sued both Dynadot and Wikileaks, alleging that a disgruntled ex-employee posted documents exposing confidential client information and falsely implicating the bank in fraud and money-laundering activities. Julius Baer agreed to dismiss the case against Dynadot in exchange for the domain registry's agreeing to the takedown order.

The groups now seeking to vacate the injunction say the court's order shuttering the site was unconstitutionally broad.

"There is no justification under the law to compel the shutdown of a Web site on the basis of confidential bank documents being uploaded, as has been alleged in this case," said David Ardia, director of the Citizen Media Law Project at Harvard Law School, which is one of 12 news organizations and non-profits that filed a friend-of-the-court brief this week. Others include The Associated Press, the Reporters Committee for Freedom of the Press, and the American Society of Newspaper Editors.

Separately from the news organizations, the Electronic Frontier Foundation and ACLU filed a brief Tuesday seeking to intervene in the case on the ground that the orders prevent people from receiving information--which, they argue, violates the First Amendment.

In addition to the injunction ordering Dynadot to take down the site, White on Feb. 15 issued a second order directing Wikileaks to remove the specific documents that Julius Baer objected to.

Wikileaks has not complied with that order, which means that company officials might face contempt charges if they appear in court today. So far, however, Wikileaks hasn't appeared in court on this case. Instead, it takes the position that the U.S. court has no jurisdiction over the matter.

Wikileaks, which launched last year, has posted more than 1 million documents exposing matters ranging from the treatment of prisoners at Guantanamo to corruption in Kenya.

The publicity generated by the case since the Feb. 15 orders seems to have surprised Julius Baer, which Thursday tried to distance itself from the controversy. "This matter has nothing whatsoever to do with censorship or The First Amendment. Instead, Julius Baer's sole objective has always been limited to the removal of these private and legally protected documents from the website," the company said in a statement issued Thursday.

The bank also said it "made no attempt to remove material on the website which refers to the organization but which does not include information personal to its customers."

Some advocates were puzzled by that assertion, given that the injunction came about as a result of an agreement between Julius Baer and Dynadot.

Dynadot also seems to have backtracked from its stance in court. Although the injunction says Dynadot agreed to take down the site, Dynadot's law firm last week issued a written statement denying that. "The only agreement by Dynadot was to comply with the Court's previous order to preserve evidence," 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."

Even though Dynadot took down Wikileaks.org, the site still can be accessed at IP address and mirror sites abroad like Wikileaks.be.

But EFF lawyer Matt Zimmerman said that the injunction still impermissibly compromises people's ability to view the records. "There's First Amendment harm when you shut down an avenue to information, regardless of whether or not there's another way to get the same material," he said.