Hoping to use the "U.S. court system as a weapon in its war against a free press," Kazakhstan's government subpoenaed Facebook for information that could endanger such dissidents as editor it incarcerated two nights before Christmas.
Kazakhstan's independent media has been in crisis mode since 2014 when a court there ordered a shutdown of the banned newspaper Respublika.
Though they have fled the country, Respublika's reporters still operate on Facebook where their articles are less likely to be scrubbed from the country's Internet.
What might have remained a local press-freedom crisis spilled into U.S. courts early last year, as tens of thousands of emails between high-ranking Kazakh government officials and their New York-based attorneys leaked onto the Internet.
The Open Dialog Foundation, a pro-democracy group based in Poland, reported that the trove contained evidence of "large-scale corruption" by Kazakh authorities, including a document showing that the country's Prime Minister Nursultan Nazarbayev paid more than $105,000 for three letters of Napoleon Bonaparte that his deputy took from France.
Claiming that anti-government hackers brought the documents to the surface, Kazakhstan tried to block the dissemination of its privileged communications by filing lawsuits in two U.S. courts within Facebook's jurisdiction: the Southern District of New York and the Eastern District of California.
Respublika opposed this as a thinly veiled clampdown on reporters, whistleblowers and dissidents by the Kazakh government, which ranks 160 out of 180 countries ranked on the Press Freedom Index published by Reporters Without Borders.
David Greene, an attorney for Respublika with the Electronic Frontier Foundation, said in an interview that he believed this to be the first case in which a foreign government used the Computer Fraud and Abuse Act against its citizens.
Though the New York court initially barred any publication of Kazakhstan's privileged emails with its attorneys, U.S. District Judge Edgardo Ramos walked back that edict after the Reporters Committee for Freedom of the Press warned that such a decision could pose a "dangerous precedent."
The revised order Ramos issued in October lets Kazakhstan pursue its investigation but offers Respublika and other media outlets U.S. constitutional protections against prior restraint of the press.
Months after this decision, however, Kazakh authorities arrested reporter Guzyal Baydalinova in a Dec. 23 raid on the ex-Respublika reporter's home.
The Committee to Protect Journalists, a New York-based advocacy group for reporters worldwide, issued a call on Christmas Eve to release Baydalinova, who edits a website called Nakanune. Its report described how authorities rummaged through Baydalinova's apartment, the home of a colleague and her newsroom a week earlier.
Baydalinova, who faces defamation charges for a story about Kazakhstan's largest bank, may now be a bargaining chip for the Respublika reporters fighting the government in California, court documents show.
In a Jan. 15 court declaration, Respublika's editor-in-chief Irina Petrushova said she believes Kazakh authorities are pressuring Baydalinova to testify against her, noting the country's history of pressuring reporters to collaborate against former colleagues.
Petrushova says Baydalinova has faced down raids, threats, fines and physical abuse for her reporting before.
"I am informed and believe that another time Guzyal was attacked near her home by an unknown man who stuck her with a needle and ran away shouting, 'Now you are infected!'" the editor's declaration states.
With Kazakhstan seeking to subpoena the Facebook accounts of Respublika's staff, Petrushova warned the Sacramento judge that such discovery would let the government "track down Respublika journalists, contributors, editors, staff, and readers to target them for further persecution - such as through wiretaps, malware or other cyber attacks, physical threats to their safety, kidnapping, unlawful detention, and baseless criminal charges."
"This well-founded fear will result in a tremendous chilling effect on the freedom of the press for any remaining opposition journalists who are risking their lives to report on Kazakhstan's ruling regime," the declaration states.
After Facebook faced criticism for kowtowing to Kazakhstan censors, the website has since taken a stand for the republic's dissident writers.
Kazakhstan's lawyers told a New York judge in August that Facebook would "typically take down" posts by Respublika and its writer Muratbek Ketebaev, an exiled dissident now living in Poland, in response to their requests.
Facebook did not reply to a request for comment about the assertion at the time but it opposed a new subpoena by Kazakhstan's lawyers on Jan. 15.
U.S. Magistrate Judge Kendall Newman in California will hear Facebook's motion to quash the subpoena on March 3.
www.courthousenews.com, January 26, 2016
