H-1B Protest Site Shutdowns Blasted by Free Speech Advocates

The December shutdown by a New Jersey court of three H-1B protest sites accused of libel-ITgrunt.com, Endh1b.com and Guestworkerfraud.com-has legal technology advocates up in arms.

The Electronic Frontier Foundation has said the court is doing damage to the constitutional right of anonymous free speech. New Jersey had previously backed this right in the precedent-setting 2005 case of Dendrite International vs. Doe No. 3, the EFF claimed in a Jan. 7 blog post.
An employee agreement contract for Apex Technology Group is at the heart of the issue. The contract was anonymously published on Docstoc.com in December, and a number of sites linked to the document and attracted a flood of comments from anonymous users. To many of these commenters, the terms of the contract appeared to make it very difficult to leave Apex once a contract was signed-which is a major issue for H-1B visa holders who have seen illegal abuses of contract terms. Examples of abuses include failure to pay employees on a regular schedule and applying fees for leaving a job early or accepting employment with other companies.
Apex denies any wrongdoing and sought to quiet the perception storm with legal action by claiming libel, EFF Senior Staff Attorney Kurt Opsahl said in the blog post.
“This order dangerously overreaches,” Opsahl wrote. “By restricting access to entire Websites, it places a prior restraint on all of the speech on the Websites, even if that speech is unrelated to Apex or Mr. Dharayan. Imagine if a court could order Amazon.com or Yelp.com shut down because of a disparaging review of a single product … The New Jersey court’s overreaching order shutting down these Websites also is inconsistent with federal law to the extent that it holds service providers to account for user posts.”
The EFF is not alone in its dismissal of the decision and of Apex’s strategy. Other legal advocates, including John Miano, board member and treasurer of the Programmers Guild, and Donna Conroy, an H-1B visa advocate for Bright Future Jobs, have objected strongly to the shutdown of these sites.
“If this order stands, it will rob the security every American expects when they post complaints anonymously or express their opinions online,” Conroy wrote in an e-mail to Computerworld. “It will create a credible threat that Americans could face retaliation from any current or former employer.”
Apex said it has lost several potential employees because of the claims being made about its business practices, according to Computerworld, but the EFF’s Opsahl said he doesn’t understand exactly how the company can claim it is being defamed by its own copyrighted legal document.
“Curiously, Apex simultaneously claimed that the document defamed them and that they were its copyright owners,” Opsahl wrote. “This is unusual, since people rarely defame themselves with their own copyrighted works.”
Opsahl went on to say the entire process the court has gone through in shutting down these sites is highly irregular. From the post:

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Ordinarily, in order to safeguard this First Amendment right, a litigant seeking to unmask an anonymous speaker would need to obtain a subpoena from an appropriate court (i.e. Santa Clara county in California for Yahoo) and serve the service provider. Then the service provider would provide adequate notice to the user, and the user could move to quash the subpoena, asserting whatever defenses the user may have. These procedures are vital to protecting speech rights, and it was inappropriate and unnecessary for the New Jersey court to short-cut that process, especially over a holiday period when [it] is all the more difficult to obtain emergency legal assistance.

“Finally, it was wrong for the court to require the upstream providers to unplug the website. Under New Jersey law, injunctions should only reach those who engage in ‘active concert or participation’ with the person who acted wrongly. There’s no indication that the upstream providers or domain name registrars for the websites even knew about the postings in question, much less acted in ‘active concert’ with them. Requiring domain name registrars to turn off websites in litigation about the website is a tactic that has already been rejected.”

Apex Technology Group applied for 23 H-1B visas in 2009, according to a government-published list of 200 companies.