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How Kazakhstan is Trying to Use the US Courts to Censor the Net

DEEPLINKS BLOG
August 4, 2015

How Kazakhstan is Trying to Use the US Courts to Censor the Net

The government of Kazakhstan has pursued one of its fiercest critics, the newspaper Respublika, with lawsuits and threats for fifteen years. By 2012, it seemed it had finally achieved its aim: after repeated prosecutions for "inciting social discord" and "spreading extremism," the paper's founder was in exile, and its staff forced to cease printing and distributing its print edition within the country. But despite blocks, bans, and overwhelming distributed denial-of-service (DDoS) attacks, Respublika's reporting lives on through its websites, which continue to critically report on the country's affairs and provide a forum for discussion from the relative safety of servers hosted in the United States.

Now the Kazakhstan government is taking its fight with Respublika into the U.S. court system. Its representatives are attempting to use American law to threaten Respublika's web host and to extract information on the organization from Facebook's logs. EFF—with the help of co-counsel James Rosenfeld of Davis Wright Tremaine—is representing Respublika in its battle to report freely online.  

Respublika was founded in 2000 by Russian journalist Irina Petrushova. Initially concentrating on business and economics reporting, the paper quickly gained a reputation for its anti-corruption coverage and critical view of the countries' post-Soviet leadership. After the paper's investigations led to the public disclosure that Kazakhstan's President since 1990, Nursultan Nazarbayev, had stashed US$1 billion of state oil revenues in a Swiss account, Respublika became a target for concentrated harassment. The body of a decapitated dog was left at a Respublika office with a warning message reading "There will be no next time"; the next day the dog's head was left hanging under the window of Petrushova's apartment with a message reading, "There will be no last time." Respublika's editorial board's offices and newsroom were both firebombed within days of each other.

Opponents to the newspaper also targeted the private companies working for Respublika. One of Respublika's printers quit the job after a human skull was left on their doorstep. In 2009, police seized the paper's entire print run as it left the local printing house. After no commercial printers in Kazakhstan were willing to print the newspaper, its staff pieced together a limited distribution using home printers and staples. And repeated prosecutions meant the paper was obliged to adopt a constant variety of new names, like "All the Respublika," "Respublika on Fire," and "Not That Respublika."  But in 2012, a pervasive government crackdown on opposition reporting in the wake of the violent repression of an oil workers' strike in Zhanaozen led to a final wide-ranging prohibition—and the closure of Respublika's final printed edition, "Assandi Times."

The paper has faced similar hardships online. Respublika's websites have been blocked by Kazakhstan's ISPs since 2009, and their servers have been the targets of near constant DDoS attacks. In order to access Respublika's news from within Kazakhstan, readers must either find ways around the blocks or access the content through social media sites. Despite these challenges, Respublika's news site and forums remain one of the few vehicles for an independent press and alternative source of information on the country's troubles not only within Kazakhstan, but also for the rest of the world.

Last year, Respublika began reporting on a cache of emails leaked from what appeared to be the gmail accounts and computers of Kazakhstan government officials. The government sued unnamed "Doe" defendants in a federal court in New York for violations of the U.S. federal computer "hacking" statute, the Computer Fraud and Abuse Act ("CFAA"). Kazakhstan quickly gained a preliminary injunction against the unnamed and unknown individuals who had obtained the private correspondence and documents.  The order prohibits the unnamed defendants—i.e., those who originally broke into the accounts—from disseminating the "stolen materials." Despite that the preliminary injunction does not name Respublika—who had nothing to do with the alleged "unauthorized access" of the "stolen materials" and who is not named as a defendant in Kazakhstan's complaint—Kazakhstan's attorneys have nonetheless cited the order in legal letters to Respublika's web host, demanding that the web host remove Respublika's legitimate and lawful coverage of the leaked information. In Kazakhstan's last letter to Respublika's web host, it demanded that Respublika's entire website be disabled.   

Earlier this month, EFF wrote a letter to the federal judge in New York who issued the preliminary injunction to inform him of Kazakhstan's abuse of the order and to ask him for permission to file papers asking him to clarify that his order does not apply to Respublika. The judge granted our request and today we filed our formal motion for clarification with the court, explaining why the court must narrow the terms of the original injunction. As we explain, not only is Kazakhstan willfully abusing the court's order, but the order, if applied to Respublika, would violate the First Amendment. U.S. law is clear that the First Amendment shields from liability anyone who republishes materials that are a matter of public interest—even if their source obtained the documents in question illegally and even if the republisher knew the documents had been obtained illegally.

Kazakhstan's attorneys haven't just been attempting to silence Respublika via the American court system. They've also been working to pry personal information about Respublika employees and volunteers. As mentioned, because Respublika's site is blocked in Kazakhstan, the news service also posts its articles to third party sites, including its Facebook group. Kazakhstan's served Facebook with a subpoena to obtain IP addresses of those who edited posts to the Facebook group and the IP addresses of certain readers. Kazakhstan also filed a second CFAA lawsuit—again against unknown and unnamed defendants—in California state court. Kazakhstan's attorneys in that case served Respublika's domain registrar with a subpoena to obtain personally identifiable information of individuals associated with Respublika. 

Under U.S. law, reporting on leaked government documents in the public interest is not a crime. Anything less would be a violation of the United States' First Amendment. Kazakhstan's leadership may not like what Respublika has to say, but it should not be able to use the U.S. courts to silence online criticism, threaten its web host, or spy on its authors.

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