Kazakh Press Safe From Ban on Leaked Email

MANHATTAN (CN) - Scaling back an emerging threat to media freedom abroad, a federal judge who enjoined the dissemination of leaked emails forbade the government of Kazakhstan from using his order to clamp down on the last vestiges of the country's independent press.

The case stems from the Jan. 21, 2015, appearance on the Internet of tens of thousands of emails that included communications from Kazakhstan's deputy prosecutor general Andrey Kravchenko, its justice ministry's executive secretary Marat Beketaev, and their attorneys at the New York-based firm Curtis, Mallet-Prevost, Colt & Mosle.

Suspecting a hack, Kazakhstan and its attorneys quickly launched a counteroffensive here. In a March 12 federal lawsuit, Kazakhstan sought relief from the unknown perpetrators under the Computer Fraud and Abuse Act.

U.S. District Judge Edgardo Ramos granted the country a sweeping preliminary injunction a little more than a week later, barring the "John Doe" defendants from publishing and sharing the "stolen materials."

Though the case had flown largely under the radar before then, multiple civil liberties groups took note as Kazakhstan began using Ramos' order back home to force the removal of articles about the leaked emails published by the independent publication Respublika.

David Greene, an attorney for Respublika with the Electronic Frontier Foundation, said in an interview that neither he nor his colleagues had heard of a case in which a foreign government used the Computer Fraud and Abuse Act for this purpose.

Respublika operates in exile and publishes primarily through Facebook because its own website is banned in Kazakhstan, Greene said.

Out of 180 countries, Reporters Without Borders ranked Kazakhstan at No. 160 this year in the Press Freedom Index. Kazakhstan has not done better on the index since 2009 when it came in at No. 142.

Greene noted that the 58 Respublika articles that the Kazakhstan government tried to remove covered a range of topics from the $1 billion merger of the country's two largest banks last year to extravagant spending by government officials on pricey dogs.

Kazakhstan's attorney said in a sworn declaration that Facebook would "typically take down" posts by Respublika and its writer Muratbek Ketebaev, an exiled dissident now living in Poland, in response to the country's requests.

Facebook has not returned a request for comment about its assistance in trampling speech abroad.

Greene called Kazakhstan's lawsuit "especially egregious" because sought an injunction against unknown individuals.

"It's being used to attack whistle-blower activity writ large," he said.

The Reporters Committee for Freedom of the Press also supported Respublika's bid to scale back the judge's order.

Warning that the case could set a "dangerous precedent," the group noted that "such an instrument of censorship is completely anathema to our democratic principles, and its impact on the freedom of the press would be devastating,"

"We do not suggest that the court intended to enjoin the press without saying so directly," Rachel Strom, an attorney with Levin Sullivan Koch & Schulz, said in a letter on behalf of the organization.

"However, the court's order is being used to censor the press and deprive readers, including those in the United States, of their right to receive information about foreign government corruption," Strom added.

Judge Ramos clarified Tuesday that his order could not apply to Respublika or its parent company LLC Media-Consult because the publication enjoys constitutional protections against prior restraint of the press.

"The First Amendment grants persons a near absolute right to publish truthful information about matters of public interest that they lawfully acquire," Ramos wrote.

Ramos did, however, let Kazakhstan try to connect Respublika to the alleged hack. Green said the move could put the country's dissidents under the light of the U.S. discovery process.

While Greene called the clarification order "significant," he added that did find it "concerning that a foreign government can use the CFAA in this way."

Kazakhstan's attorney Jacques Semmelman, who claims to be one of the victims of the hack, did not respond to a request for comment.

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