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Monday, July 26, 2010

Pentagon Papers II?: Wikileaks and Information Control in the Internet Era

Wikileaks.org obtained and released six years worth of Pentagon reports on the progress of the war in Afghanistan, and today stories based on the leaked information appear in the New York Times, the Guardian, and Der Spiegel.  It is impossible to read of this new "leaks" case without thinking of the 1971 Pentagon Papers case, when Daniel Ellsberg released documents, specifically a 47-volume government report, concerning U.S. involvement in the war in Vietnam to the New York Times and the Washington Post.  When the New York Times began publishing stories based on the leaked documents, the Justice Department went to the courts to seek an injunction against further publication; in the meantime, the Washington Post began publishing materials from the Pentagon Papers, and the Justice Department again sought an injuction.  This ultimately triggered a showdown in the United States Supreme Court, which issued an opinion only five days after the crisis began.  Although every member of the Court wrote a separate opinion in the Pentagon Papers case (New York Times Co. v. U.S., 403 U.S. 713 (1971)), the brief per curiam issued by the Court sent a clear signal that the Executive Branch cannot use injunctions against the media to prevent leaks of embarrassing documents simply by invoking national security justifications. Today, however, the legal lesson of Pentagon Papers regarding injunctions is almost beside the point. 

It is technology, even more than law, that makes it nearly futile to pursue injunctions against publication of leaked documents today.  Consider two "modern" cases involving attempts to enjoin publication of leaked documents on Wikileaks. 

In the first, a federal judge learned the hard way the difficulties associated with the granting an injunction against the disclosure of allegedly commercial secrets on Wikileaks.  Someone posted on Wikileaks confidential documents allegedly showing that Julius Baer Bank and Trust, based in the Cayman Islands, engaged in hiding assets, laundering money, and evading taxes.  The bank filed suit in federal district court in San Francisco against Wikileaks.org and Dynadot, the site‘s domain registrar, seeking to shut down the site.  The judge issued a temporary restraining order forbidding further distribution of the documents. Dynadot, a company that leases domain names to website operators for a fee, agreed to the entry of an injunction requiring it to disable the Wikileaks website.  News of the order shutting down the website set off a furor on the Internet and among mainstream media. As part of its plan to avoid legal interference, Wikileaks maintained mirror sites in Belgium, Germany, and the Christmas Islands registered with companies other than Dynadot, and those were beyond the court‘s jurisdiction. Fans of Wikileaks used the Internet to widely publicize the addresses of those sites and the fact that the material remained available there. Lawyers for public interest groups, Internet watchdogs, and mainstream news organizations filed motions to intervene or appear as amicus curiae. They argued that the order was akin to closing down a newspaper, and that there was no precedent in prior restraint jurisprudence for shutting down an entire outlet because of one item it published.  After just three weeks, the judge rescinded the order. See Bank Julius Baer & Co. Ltd v. Wikileaks, 535 F.Supp.2d 980, 36 Med. L. Rptr.12 1473 (N.D.Cal.2008).   The judge ended up concluding that the injunction had exactly the opposite effect as was intended. The private, stolen material was transmitted over the internet via mirror websites which are maintained in different countries all over the world. Further, the press generated by this Court‘s action increased public attention to the fact that such information was readily accessible online. The judge also noted that he probably lacked subject matter jurisdiction because diversity jurisdiction does not extend to suits between aliens. The bank was organized in Switzerland and based in the Cayman Islands. A lawyer who appeared on behalf of Wikileaks said the domain name was owned by an Australian citizen who lives in Kenya.

In 2009, a British judge enjoined The Guardian newspaper from publishing leaked documents regarding an oil spill involving a multinational corporation. See Noam Cohen, Twitter and a Newspaper Untie a Gag Order, N.Y. Times, Oct. 19, 2009. The judge also ordered the newspaper not to reveal the existence of the injunction. Despite the injunction, Wikileaks obtained and published the documents. As a result, a member of Parliament questioned the Prime Minister about the documents. The Guardian ran an article about the parliament member‘s question, noting that it was barred from identifying him. Readers picked up the story and began using social media such as Twitter to distribute it widely. Finally, under the glare of public scrutiny that resulted, the multinational corporation at the center of the controversy agreed to release the documents that were the subject of the injunction.

By the way, though injunctions may not work once the cat is out of the bag or the genie out of the bottle, the Executive Branch may very well attempt to prosecute the leaker.  See here and here.

Posted by Lyrissa Lidsky on July 26, 2010 at 05:10 PM in Current Affairs, First Amendment, Information and Technology, Lyrissa Lidsky | Permalink


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"...the Executive Branch may very well attempt to prosecute the leaker." Indeed, this was the case with Ellsberg (and Anthony Russo), who was eventually charged with fifteen counts of conspiracy, conversion of government property, and espionage. Although the defense attempted to dismiss the charges based on the fact that Howard Hunt and G. Gordon Liddy, as government employees (and Watergate infamy), had burglarized the offices of Ellsberg's psychiatrist, they did not succeed until it was later revealed that the government had been involved in other nefarious activity with regard to Ellsberg. What was also remarkable about this case was the naked attempt by President Nixon to influence the outcome "by dangling the FBI directorship in front of [presiding Judge Byrne]."

Another intriguing fact from the Pentagon Papers case, as David Rudenstine notes in his thorough study,* is that "more than a majority of the Supreme Court justices had indicated that the government might mount a successful criminal prosecution [against the press, especially the Post and the Times]," even though it had denied its injunction!

I think the decision in the Pentagon Papers case remains relevant insofar as we appreciate, again with Rudenstein, "the idea that the government should be able to enjoin publication of information merely because it was classified would certainly have constituted a radical departure from well-settled expectations of what American law was." This is significanct if only because of the government's near absolute discretion with regard to the classification of documents.

In addition, the Court clearly rejected the notion that the First Amendment barred ALL prior restraints. In this instance, the government was far from meeting any evidentiary burden it had with regard to the "immediate and irreparable harm" of National Security interests. In short, I think it is true that the Pentagon Papers case remains

"a guidepost for any democratic society to follow as it daily resolves clashes among competing claims that implicate freedom and security. [....] District judge Murray Gurfein got to the heart of the matter in his decision--the first judicial decision in the Pentagon Papers cases--dissolving the injunction in the Times case: 'The Security of the Nation is not at the ramparts alone. Security also lies in the value of free institutions.'"

Your point about how new technologies may alter the legal dynamic is no less well taken.

*David Rudenstein, The Day the Presses Stopped: A History of the Pentagon Papers Case (1996).

Posted by: Patrick S. O'Donnell | Jul 26, 2010 7:08:02 PM

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