Preliminary Injunction Cannot Bar Respublika From Using “Stolen” Kazakhstan Emails in Its Reporting

The Republic of Kazakhstan has been blocked from using the U.S. court system to censor one of its most vocal and effective critics.  In a victory for free speech rights, United States District Judge Edgardo Ramos in New York said the First Amendment protects the independent news organization Respublika from the government’s censorship tactics. Respublika, which reports critically on Kazakhstan’s ruling regime, published government emails that Kazakhstan claims were stolen, posted to the Internet and then indexed on a website called “kazaword.”

As Judge Ramos recognized, the First Amendment “protects the publication of the kazaword documents by anyone other than those directly involved in their purported theft.”

As we previously reported here and here, EFF represents Respublika, which had used several of the kazaword documents in its reporting, and became one of the main targets of Kazakhstan’s censorship. Kazakhstan used a preliminary injunction it had earlier obtained from Judge Ramos to demand that articles published by Respublika be removed from the Internet.  Plaintiffs can obtain such injunctions at the beginning of a lawsuit if they can prove they are likely to win and will suffer irreparable harm in the meantime. The news organization’s web host ultimately required Respublika to remove 58 articles from its site. Facing the prospect of its site being null-routed, Respublika was forced to comply.

The injunction, was issued in Kazakhstan v. Does, in which Kazakhstan claims that unidentified hackers allegedly broke into its email system and Gmail accounts in violation of the Computer Fraud and Abuse Act (CFAA). The preliminary injunction required the defendants (who have not yet been identified) and “all person acting in concert with them” from “disclosing, or otherwise disseminating” the “stolen” documents. Kazakhstan claimed that this order gave it the authority to demand that Respublika’s articles using these documents be removed.

We asked the court to clarify that the preliminary injunction could not be used in that way. Judge Ramos accepted our arguments, finding that neither Respublika, nor anyone else not directly involved in the purported theft of the documents, could be barred from publishing emails that Kazakhstan claimed were obtained through an illegal hack. As Judge Ramos wrote:

The fact that Respublika may have used or posted certain of the Stolen Materials on its website, is not, without more, sufficient to subject it to the Injunction. The First Amendment grants persons a near absolute right to publish truthful information about matters of public interest that they lawfully acquire. See Smith v. Daily Mail Publishing Co., 443 U.S. 97, 103 (1979). The Supreme Court affirmed that the Daily Mail rule applies even if a re-publisher of information that is of public concern knew that the source had obtained the information illegally. See Bartnicki v. Vopper, 532 U.S. 514, 535 (2001).

Judge Ramos further found that the preliminary injunction as applied against Respublika, was an unconstitutional prior restraint. Prior restraints, which prohibit publication, are the most strongly disfavored restriction on First Amendment rights. Prior restraint is rarely constitutional and in all circumstances will only be approved when it will actually prevent a threatened harm. It cannot usually be used to stop the further publication of purportedly “secret” documents that have already been published. In this case, the documents were available on the Internet for several months before Kazakhstan used the preliminary injunction to have them taken down. And many of them have been republished by other international news organizations.

Kazakhstan to Proceed With Discovery

The matter does not, however, end there. Kazakhstan is now moving forward with its plan to conduct discovery against Respublika in an attempt to prove that Respublika was actively involved in the alleged illegal hacking.  Judge Henry Pitman, the magistrate judge overseeing Kazakhstan’s discovery request, granted Kazakhstan permission to depose Respublika’s editor-in-chief, Irina Petrushova, but limited the topics on which she may be questioned. Judge Pitman warned Kazakhstan that much of the information it is seeking will be protected from disclosure by the reporters’ privilege, but allowed the deposition to move forward nonetheless.

Fortunately, Kazakhstan withdrew it most dangerous request, which was to ask questions about every time Respublika had published emails and other documents that Kazakhstan had hoped to keep secret, even if they were not documents described in the Kazakhstan v. Does complaint. Kazakhstan initially argued that it should be able to try to establish a “pattern of practice” of Respublika’s involvement in “illegal hacking.” This line of questioning threatened Respublika’ core journalistic independence. Of course, the only “pattern and practice” Kazakhstan would have discovered is one of practicing journalism: Respublika, as the primary media critic of the Kazakhstan regime, routinely publishes leaked documents that show misdeeds and corruption in the ruling regime. Kazakhstan withdrew this request before Judge Pitman could rule on it.