As co-counsel with the Electronic Frontier Foundation (EFF), DWT has been working for the past two years on behalf of a media company that is being targeted in U.S. courts by the government of Kazakhstan.
Respublika, led by editor-in-chief Irina Petrushova, was once the main opposition press in Kazakhstan before being persecuted and driven into exile in 2012. Now a digital publication, Respublika has continued to report critically on the Kazakh government and its longtime president, Nursultan Nazarbayev, via online channels—and continues to be harassed. Together with EFF, Jim Rosenfeld of our New York office has been successfully resisting these new strategies by a regime that is ranked near the bottom on the World Press Freedom Index.
The most recent efforts to silence Respublika were launched in connection with a Computer Fraud and Abuse Act lawsuit brought by Kazakhstan in federal court in New York. In the suit, the government contends that 100 unnamed and unknown hackers (Does 1-100) broke into its email system and stole various confidential documents. Some of those documents—which may have been simply leaked and, if stolen, were not stolen by Respublika—provided source material for numerous Respublika articles starting in January 2015, both on its own website and through its Facebook page.
In response to a Kazakh motion, Judge Edgardo Ramos issued a preliminary injunction enjoining the Doe defendants and anyone acting in concert with them from using, disclosing or disseminating the documents. Kazakhstan then took that order and used it to force Respublika’s U.S.-based web host to remove Respublika’s news articles about the materials from the internet.
Rosenfeld and EFF moved to stop this abuse of the injunction. In November 2015, they obtained an order from Judge Ramos clarifying that the injunction did not apply to Respublika because there was no allegation or proof that Respublika was involved with the hacking in any way. Judge Ramos noted that the First Amendment “protects the publication of the … documents by anyone other than those directly involved in their purported theft.” The judge also agreed that application of the injunction to stop Respublika from printing such materials was an unconstitutional prior restraint.
However, the judge told Kazakhstan that it could come back to court and seek a preliminary injunction against Respublika if it had evidence that Respublika was somehow involved in the purported hacking.
Seizing on this suggestion, Kazakhstan issued a subpoena to Facebook, seeking to obtain the names, email addresses, IP addresses, and MAC addresses of users associated with Respublika’s Facebook page. The government claimed it wanted to compare the IP addresses produced in such discovery with those it believed were used to access the hacked accounts, thereby leading to the hackers’ identities. Facebook resisted the request, and Kazakhstan filed a motion to compel.
In yet another victory for the EFF/DWT team, a federal judge in California rejected Kazakhstan’s demand in March 2016, ruling that Judge Ramos’ order had not given the government authorization to pursue this intrusive discovery with respect to Respublika.