Tuesday, February 19, 2008

Prior Restraint 1, Constitution O. But In The Second Game of the Double Header, Tech 1, Judge 0.

The NYTimes.com reported today that a U.S. District Court Judge in San Francisco ordered Dyandot, a company that registered wikileaks.org to shut it down and “lock” the site (the later meaning not allowing the site’s owners to transfer the site to a different host).

As to the second link, the site is still there. I don’t know if the company is violating the order, or the owners have succeeded in moving their content to another host. As to the title of the post, if you don’t feel like going to the article:

“The feebleness of the action suggests that the bank, and the judge, did not understand how the domain system works or how quickly Web communities will move to counter actions they see as hostile to free speech online.

“The site itself could still be accessed at its Internet Protocol (IP) address (http://88.80.13.160/) — the unique number that specifies a Web site’s location on the Internet. Wikileaks also maintained “mirror sites,” which are copies of itself, usually to insure against outages and this kind of legal action. These sites were registered in countries like Belgium (http://wikileaks.be/), Germany (wikileaks.de), and the Christmas Islands (http://wikileaks.cx/) through domain registrars other that Dynadot, and so were not affected by the injunction.”

On the Constitution and law side of the equation, the Judge should say the legal equivalent of “my bad.” Courts cannot close down speech by a person or a company before the fact. That is called prior restraint and is almost always found to be unconstitutional. Here the issue is practical and legal. The Judge legally screwed up in his Order and practically “can’t” enforce it, because he doesn’t understand the technology involved.

4 comments:

Ron Davison said...

Ha! I'm first. Oops. Now what was I going to say?

Oh, I remember. I love the fact that technology has basically made legal restrictions on speech meaningless. I'd never really thought about this before, this notion that technology can obsolete law, but I guess laws always assume some particular level of technology.

Dave said...

Law has been in fits and starts trying to catch up with technology all its "life." The past ten or so years and the Napster and its projeny issues is a great example.

Under copyright law, burning or downloading a song, a movie or a novel without payment is illegal, with certain exceptions. But, how to stop it?

Then there the traditional exceptions that the producers want to now change because of technology. I can give or loan you the book I bought; but, I can't burn you the latest CD from whomever. There's no real difference in the two acts except that the second is more likely to result in fewer sales of the piece. Thus the producers will make less money from their creation.

As my side in the war - I don't copy CDs or software.

Anonymous said...

Trying to take a document off of the internet is like trying to take pee out of a pool.

Minnesotablue said...

I agree with Thomas. Take off one site and another of the same content will pop up.