A federal court judge says prior Wikileaks ruling was unconstitutional
In what may be the last act of a quickly unfolding drama, Swiss banking giant Julius Baer has dropped its lawsuit against Wikileaks, an anonymous whistle-blower Web site, and Dynadot LLC, the site's registrar. Baer's attorneys had sought to shut down Wikileaks through a permanent injunction for hosting potentially damaging material about the bank's activities in the Grand Cayman Islands.
The bank's decision last week follows its legal defeat Feb. 29 in which San Francisco federal court judge Jeffrey S. White withdrew his ruling to halt the US version of the Web site Wikileaks.org and to also stop information from the site from being transferred to another server.
White weighed arguments from both sides and said his withdrawal of the order against Wikileaks still raises serious issues about the extent of jurisdiction any US court has over the Internet. He essentially agreed that prior restraint of the site was unconstitutional, and that it could create a "chilling effect" on future free speech cases. He bowed to arguments from defense attorneys and said his prior order raises questions regarding "possible infringement of protections afforded to the public by the First Amendment."
The anonymous forces of Wikileaks seemed to have braced for the legal blow. Within hours of the Feb. 15 takedown order by White, those in the know could access the site by entering the IP address, which is run on a server in Sweden and on other servers around the world.
While no official Wikileaks defendant ever materialized because its operators remain a secret, the preliminary injunction order set off a firestorm of criticism from free speech advocates. One after another, lawyers from the ACLU's San Francisco chapter, Public Citizen in Washington D.C., and nearly a dozen civil rights organizations rushed to intervene and defend the site.
Shutting down the site is akin to "locking the doors of The New York Times," said Julie Turner, an attorney who represented Wikileaks in prelitigation matters.
"I think this was a textbook example of what not to do," said media law attorney Thomas Burke of the bank's efforts to seek a prior restraint. "This just completely backfired and garnered international attention."
The documents posted on Wikileaks have been used as the basis for major news stories on subjects such as the treatment of inmates at Guantanamo Bay, the US military's rules of engagement in Iraq, and corruption by Kenya's former president. And instead of concealing documents, the case has drawn a maelstrom of attention to the bank's alleged dealings, and it raises big questions about freedom of speech on the Internet.
In their filing, Julius Baer attorneys said they still reserve the right to consider filing suit in the same court or elsewhere and are considering the company's legal options. The bank's spokesperson, Jenna Agins, declined a Guardian request for comments.
Founded in 2006 by Chinese dissidents, journalists, and tech gurus, Wikileaks hosts 1.2 million leaked documents that aim to expose government and corporate wrongdoing. Anonymous site creators say they're developing an uncensorable system for "untraceable mass document leaking and analysis" and are ready to fight any legal attack.
Wikileaks may have evaded its censors this time, but the latest case portends the vulnerability of such sites and those involved in them. Julius Baer's attorneys admitted to the judge they had a hard time tracking down a Wikileaks representative. So they went after Daniel Matthews, a Stanford grad student. According to the bank's court filing, the bank's attorneys found his name on a Facebook page listing him as an "officer" of Wikileaks and summoned him to court. Joshua Koltun, his pro bono attorney, rushed to file a brief to defend Matthews.
"It was an extremely aggressive move because they were basically grabbing at straws," said Koltun, who appeared without his client in court. "They said he would face liability for a very tenuous connection or be confronted with disobeying the court order."
The bank's attorneys claimed that Wikileaks had disclosed confidential or forged information about its clients and said there was nothing newsworthy about it. In this way, they are attempting to pit freedom of speech against personal privacy rights.
"Wikileaks has actively solicited the theft of private information," said William Briggs, one of the lawyers for the bank. "They are no longer shielded by the First Amendment."
But freedom of speech laws trump privacy rights in this case, argues Matt Zimmerman, senior staff attorney for the Electronic Frontier Foundation, which filed an amicus brief opposing the judge's injunction against Wikileaks. "The information was already out there and the bank wanted to force everyone who had a copy of it to pull it down."
Perhaps the more salient point going forward, Zimmerman says, is that consumers are more wary of what Internet provider or domain registrar they choose and to make sure those companies protect free speech rights.
In their suit, Julius Baer's attorneys sued Wikileak's domain registrar, Dynadot LLC in San Mateo, for hosting the site. The small start-up agreed in a Feb.14 court stipulation to all of the bank's demands to disable the site and prevent its transfer to another server, in exchange for getting the case against them dismissed.
"This is part of the reason why Congress has passed laws to get the intermediary out of the way," Baer said. "Dynadot was never liable for the information its user posted. It's unfortunate that they apparently didn't know the law well enough and decided to fold."
Dynadot lawyer Garret Murai denied that his client had agreed to all of the bank's terms. "The court's order to remove the domain name settings is not something we wanted to do," he said. "We did not agree to that."
David Ardia, an Internet law expert at Harvard, says even in the US, which has long established First Amendment protections, the threat of lawsuits against Web sites such as Wikileaks still lingers.
The power of an individual judge to bring down a Web site still remains, he says, but not if sites can function on international servers outside US jurisdiction.
Most online bulletins or blog posts allow people to post comments and remain anonymous, but not to the point where governments can't find out who they are. What makes Wikileaks formidable, some say, is its software's ability to cover the tracks of its users.
Peter Scheer, executive director of the California First Amendment Coalition, says time will tell whether the Wikileaks site can prove its mission to covertly leak information and should never have been silenced in the first place.
"As we as a society become increasingly dependent on the Internet as a source of information, the vulnerability of the Web site to that kind of action is something to fear," he said. "So when it happens, it's important to draw maximum attention to it, to go into court with all guns blazing."
From the stand, White conceded the problem with pursuing a case against an anonymous entity such as Wikileaks, which has no official representation and whose chief players remain invisible.
Then he questioned the effectiveness of trying to control leaked documents, even if those responsible had somehow violated personal privacy rights: "When this genie gets out of the bottle, it's out in the world."