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Free Speech Advocates Mount Legal Battle to Unchain Wikileaks

By Erika Morphy
Feb 28, 2008 9:05 AM PT

The American Civil Liberties Union, the Electronic Frontier Foundation, Public Citizen and twelve media groups are asking a federal court to lift an injunction against the global whistleblower Web site Wikileaks.org.

Free Speech Advocates Mount Legal Battle to Unchain Wikileaks

Two weeks ago, in the U.S. District Court of the Northern District of California, Judge Jeffrey White issued a permanent injunction against the site in response to a suit filed by a Swiss bank.

In Bank Julius Baer & Co., Ltd v. Wikileaks, et al, the plaintiff claims that the posting of certain documents to the Wikileaks site violated Swiss and Cayman Island bank secrecy laws.

Judge Jeffrey White ordered domain registrar Dynadot to disable Wikileaks.org in response to Julius Baer & Co.'s complaint. The groups behind the request to lift the injunction claim that it violates the First Amendment.

Like many clashes between Web 2.0 technologies and current -- often outdated -- law, this case has the potential to change the way technology may be used in certain situations and possibly even alter our fundamental understanding of what actions can be considered Constitutional rights.

This case takes on an added urgency given the nature of Wikileaks.org, which was founded by activists to provide a forum for overseas whistleblowers who want to release sensitive government or corporate information of interest to the public, but are not protected by local laws.

"There are many countries that don't have laws to protect whistleblowers," Reuben Guttman, senior counsel with Grant & Eisenhofer, told LinuxInsider. "That is why sites like this are important. [Wikileaks] provides a forum for these people about issues that not only affect them but potentially us as well." (Although the Wikileaks.org Web site is inaccessible, it is mirrored at various locations on the Web.)

For instance, factory workers in China -- a country that has whistleblower protection but is notoriously lax in enforcing those laws -- might use Wikileaks to post information about lead paint used in toys or other products, Guttman said.

Real-life examples of Wikileaks posts include materials discussing human rights abuses in China and political corruption in Kenya. Perhaps most famously, in November 2007 a manual documenting U.S. Army operations at the Guantanamo Bay prison was posted on Wikileaks after the Bush Administration resisted releasing it to the ACLU in response to a Freedom of Information request.

An Anonymous Post

Wikileaks runs on modified MediaWiki software, according to Wikipedia, allowing anonymous whistleblowers to post documents in a way that cannot be traced. Launched in December 2006, it is hosted in Sweden; at last count, Wikileaks was the repository of more than 1.2 million documents.

Julius Baer took exception to the site when it discovered documents posted by a former employee that purported to show the bank had been engaging in money-laundering activities for its clients.

Because the Wikileaks server is based in Sweden, legal jurisdiction initially was difficult to ascertain. The bank eventually filed a suit in California, according to Steve Mayer, a partner with Howard Rice Nemerovski Canady Falk & Rabkin, who represents the ACLU, EFF and a Wikileaks user.

How and why the bank wound up in a California court is at this point almost immaterial, he told LinuxInsider.

The bank has promised to allow Wikileaks to go live again once the documents are returned, "but the injunction says nothing about that," Mayer noted. "The larger implications of this case are huge if this is allowed to stand -- a third party shutting down a site just because they claim there is information on it that was stolen or leaked. It is like shutting down an entire paper because of a leak."

Pentagon Papers Comparison

"One institution's stolen documents is another institution's Pentagon Papers," Mayer remarked.

He's not the only one to invoke the Pentagon Papers -- a now sacrosanct icon of freedom of speech.

"Wikileaks is as much a part of the press as any other news source," Wayne Matus, an intellectual property and privacy litigator at Pillsbury Winthrop Shaw Pittman, told LinuxInsider.

"Shutting down the Wikileaks site in the U.S. because it published documents which purportedly suggest Julius Baer & Co. helps customers launder money appears similar to what the Nixon administration wanted to do in stopping the publication of the Pentagon papers," he observed.

However, the remedy in this case is even more drastic than what Nixon sought, Matus continued, as he did not try to shut down The New York Times.

"It is difficult to imagine how freedom of press has meaning if a press source can be put out of business for publishing something someone does not like," he added. "It will be interesting to see if the judge has legal authority to justify his actions or reverses his opinion in view of [Wednesday's] motions for reconsideration."

Commercial Interests

Given the First Amendment issues raised, it may seem inappropriate to consider mundane commercial interests -- but they also must be considered, Jeff Tillotson, who handles commercial litigation at Lynn Tillotson & Pinker in Dallas, told LinuxInsider.

"The First Amendment trumps all, but a court can protect proprietary or privileged information," he pointed out. "However, in doing so, the court is generally required to fashion the least restrictive relief."

For example, Tillotson said, "if you post the Coke formula on your MySpace page, the court can't shut down the entire Web site. It can't even shut down your MySpace page unless there is no other way to protect the injured party. In these cases, judges have to balance the interests without going too far in either direction."

Guttman cautions, though, against leaping to the conclusion that this case is a direct assault on the First Amendment -- at least the part of the First Amendment that guarantees freedom of speech.

"The founding fathers never envisioned anything like the Internet -- and when you are dumping information out there like that, there could be a clash of First Amendment rights" such as freedom of association versus freedom of speech. In this scenario, he said, it could be debatable whether one could publish a list of church members on the Internet, for instance, because that might infringe on their right to associate.

As for the arguments in the Julius Baer case, "I didn't see any conflicts like that," Guttman acknowledged, "but it doesn't mean that wasn't what the judge was thinking."

Allowing the injunction to stand, however, could unintentionally place a weapon in some companies' hands. Tillotson points to a similar case involving a video by pop singer George Michael. "A portion of his music video was claimed to have been slanderous. The court could not bar the whole video because it was protected speech. Only the segment in question could be blocked."

The Web site hosting the video was caught in the middle, Tillotson added. "I do see how the court's ruling, if allowed, could intimidate other Web site owners: 'Remove content I don't like, or I will seek to shut down your whole site.'"


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