By Rob Sanchez
01/11/2010
The Electronic Frontier Foundation (EFF) weighed in on the APEX vs Tunnel Rat case. They strongly criticized Judge James Hurley for issuing orders to shut down three websites and to reveal the identities of the webmasters. On the EFF website a page titled: "Order to Shut Down Websites Critical of Apex Technology Group is Dangerous and Wrong". provides a strong opening paragraph that leaves no doubt where the problem lies:
Over the holidays, a New Jersey court issued an order requiring upstream providers to shut down three anti-H1-B websites that is deeply dangerous and wrong. The order not only tries to remove allegedly defamatory messages but also requires a complete shutdown of the websites and even purports to require the cooperation of the hosting companies and domain registrars of the websites to do so and for other service providers to identify anonymous speakers.
Thoughtful arguments made on that EFF page could be used as material for anyone who is interested in writing a letter of complaint against the Superior Court of New Jersey and Judge James Hurley. The EFF probably issued the statement in order to offer APEX and its president, Sarvesh Kumar Dharayan, a chance to save face by backing off before legal action is taken. APEX and Dharayan would do well to heed the warning because the EFF has an impressive list of victories in cases that are very similar to this one. Perhaps it’s a coincidence but a recent victory involved another case in New Jersey (What’s with these NJ courts?). In this one, another New Jersey judge tried to trample on the 1st Amendment to free speech in the case of Manalapan v. Moskovitz:
One blogger who was particularly critical of the Township, of this and other decisions, was Blogspot blogger "datruthsquad". Inexplicably, attorneys for the Township issued a subpoena to Google (owner of Blogspot) demanding that the identity of this anonymous critic be turned over, along with datruthsquad’s contact information, blog drafts, e-mails, and "any and all information related to the blog."
What’s happens next is difficult to predict. Kurt Opsahl, a senior staff attorney at EFF, didn’t give a hint whether EFF would get further involved in this case if APEX continues their folly. Patrick Thibodeau of Computerworld asked Kurt Opsahl what the next step would be for EFF but there was no clear commitment if EFF would be willing to escalate the case by taking legal action if APEX continues their attack on the Constitution of the USA.
"The order has troubling implications about the longstanding constitutional right to anonymous speech," Opsahl said in his analysis. In an interview, he said he doesn’t know if the EFF will get directly involved in the case. "It is something that is definitely of interest, but whether we would take it up as a case remains to be seen," Opsahl said.
Hopefully Judge James P. Hurley will do the honorable thing before his retirement in February. NOTE: The Programmer’s Guild has an archive of legal documents pertaining to the APEX case for those who want to do further research.
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