If you're a lawyer, you gotta love this. At the end of the day Thursday, Federal Judge Jeffrey White -- the judge who issued the shut-down notice against Wikileaks -- released his questions for argument (PDF) for Friday morning's hearing regarding that order. White also certified a number of outside legal groups as amici in the case, including: Public Citizen, the ACLU, the Electronic Frontier Foundation, and a group of major media companies and advocacy groups. See EFF's page for a full archive of all the legal documents. Here's the substantive text of the judge's questions. I'll try to provide some legal background on the authority he cites when time permits.
1. How do Plaintiffs respond to the holding in Bartnicki v. Vopper, 532 U.S. 514, 528-29 (2001), in which the Supreme Court found that “punishing disclosures of lawfully obtained information of public interest by one not involved in the initial illegality” is unacceptable absent a need of the highest order? Isn’t Plaintiffs’ remedy against Rudolf Elmer, not Wikileaks or Dynadot?
2. Federal courts have a duty to raise and decide issues of subject matter jurisdiction sua sponte at any time it appears subject matter jurisdiction may be lacking. Fed. R. Civ. P. 12; Augustine v. United States, 704 F.2d 1074, 1077 (9th Cir. 1983). a. In addition to diversity, Plaintiffs claim this Court maintains jurisdiction because this is “a civil action by an alien for a tort committed in violation of a treaty of the United States.” What is the basis of this claim? b. Does Dynadot, as a domain name server, qualify as a provider of an“interactive computer service” and is it therefore immune from liability under 47 U.S.C. § 230(c)(2)? c. Is there any evidence of an agreement setting out terms of usage between Dynadot and WikiLeaks?
3. There is evidence in the record from correspondence and press generated by WikiLeaks indicating that it is represented by six pro bono counsel as well as Roger Myers from Holme Roberts & Owen LLP. Do any of these attorneys intend to appear or conduct a defense of WikiLeaks? Without WikiLeaks making an appearance, was there any more narrowly tailored remedy for protecting private information from stolen documents from the website beside locking and disabling the website until such time as the disputed documents were removed or redacted?
4. Plaintiff contends that “there is no support for the notion that privacy rights are subordinate to those of the press.” Supplemental Brief at 3.) Although many cases find that the extraordinary remedy of a prior restraint may be merited where there are questions of “competing constitutional interests,” and “the need to protect individual privacy rights may, in some circumstances, rise to the level of a substantial government interest and defeat First Amendment right of access claims,” what authority stands for the proposition that the right to privacy trumps the freedom of access to information in this or a similar context? See Proctor & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 225 (6th Cir. 1996) and McClatchy Newspapers, Inc. v. District Court, 288 F.3d 369, 374 (9th Cir. 2002). How do the amici respond to the court’s holding in Virgil v. Time, Inc., 527 F.2d 1122, 11228 (9th Cir. 1975), in which the Ninth Circuit held that “the public’s right to know is, then, subject to reasonable limitation so far as concerns the private facts of its individual members”? Is the private financial information of Plaintiffs’ customers privileged as newsworthy?
5. Should the Court grant Plaintiff’s application for a preliminary injunction, how do Plaintiffs intend to enforce the Court’s order?