A signature from an obscure federal judge, ordering an even more obscure domain name registrar, to delete a little-known Web site from the vast Internet lookup directory, set off a firestorm First Amendment protest and shoved all the players into the spotlight of the national and global stage. 

Here are the facts.  Wikileaks.org is a Web site dedicated to “developing an uncensorable system for untraceable mass document leaking and public analysis,” as stated by its founders, who are not in the United States.  Documents leaked onto Wikileaks range from evidence of government corruption in Kenya to documentation of treatment of detainees at the U.S. Guantanamo Bay military base.

A Swiss-based bank – Julius Baer – went to court in the U.S. claiming that Wikileaks had posted confidential bank documents that had been stolen by a “disgruntled ex-employee” and passed on to Wikileaks for publication.  The bank alleged that in doing so, Wikileaks involved in unlawful business practices, interference with contract and prospective economic advantage, and conversion.  The employee alleged to have stolen the documents is a Swiss citizen who worked in the Cayman Islands, and the Wikileaks site itself is located on web servers in Sweden.

A U.S. federal Judge, at the request of the bank in a proceeding that receive any input from free speech advocates, issued an injunction ordering that the website be “disappeared,” that is removed from the Internet directory of names so that one could not get to the website by typing “www.wikileaks.org” into a web browser. The register, Dynadot, didn’t resist this plainly unconstitutional order, and until the U.S. free expression community raised a ruckus and intervened in the case, the plug was pulled on Wikileaks.  Only after intervention by free speech advocates did the judge withdraw his orders and the bank dismissed its entire case.

There is much blame to go around here, starting with a befuddled judge who sparked the constitutional crisis. But little attention has been focused on the behavior of the registrar, which managed to quietly exit stage left, slip into the shadow of the wings, to remain, at best, a historical footnote.

And while the Digerati deserve all the applause for rallying to the cause of Internet free speech, now that high volume blogosphere has leveled off, someone, somewhere, should go looking for that missing actor, the registrar Dynadot, and start asking some hard questions.

Dynadot apparently didn’t even blink when ordered to pull the plug on Wikileaks.org. Instead, the company abandoned its better angels and ran for the tall grass at the first scent of trouble. 

And why not?  What incentive was there for Dynadot to fight the order?  I guess it’s tough to be a hero when there’s only an $8.99 per year registration fee on the line and the only upside is standing on principle, while shouldering the potentially crushing weight of legal bills.

But here’s the rub. Legal experts say Dynadot threw in the towel for no reason at all; that although the company is named as a defendant in the lawsuit, there are no actual charges levied at the company in the complaint, and under clear U.S. law, no charges could have been levied against Dynadot.  Perhaps the company did not know, or perhaps it knew and just complied to be rid of the mess.

There is a sense now among some in the legal community that domain name registrars will likely become targets of future litigation.  Having seen how easily Dynadot rolled over in the Wikileaks case, plaintiffs may decide that domain name registrars are pushovers.  Legal action might not even be needed.  Perhaps domain name registrars, with much to lose and little to gain, will start to roll over in private negotiations to wipe a Web site from the cybermap.  Dynadot’s self-preservation move has set a dangerous precedent that has only been whispered in small legal forums and among Internet advocates.

The domain name industry, as a whole, needs to grow a spine, and quick.  To be sure, there are registrars that would fight with every available resource if faced with an order to abridge free speech, but it is not enough. The industry needs to come together to discuss and agree on a code of conduct that makes clear to all who seek to strong arm them, how they will respond the next time—and there will be a next time—when a judge or corporation or government tries to strong-arm a domain name registrar into making a web site go dark, without full legal process. 

A code that says, if a company finds itself facing a half-baked order to wipe out a Web site address that is intended simply to silence speech that a plaintiff disapproves of, it promises to participate in defending the rights of its users. That would allow the industry to put up a united front, which in turn raises the bar for plaintiffs who now see domain registrars as the weak leak in the free expression chain.  Hopefully, with some needed pushback from the registrars, it might make some potential plaintiffs sit back and ponder the course of action to take when they are offended by content on a site.

At least in the United States, where the registers have the Constitution and federal law on their side, maybe the next domain name registrar won’t have to exit stage left, and make for the shadows in the wings.