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Judge's Gagging of Wikileaks Ignites Free Speech Furor

By Keith Regan
Feb 19, 2008 1:03 PM PT

A Swiss bank has succeeded in at least temporarily shutting down the U.S. version of a Web site where a former bank employee posted internal documents he claims showed the bank was being used to hide and launder money. Earlier, a judge approved an order taking down the Web site.

Judge's Gagging of Wikileaks Ignites Free Speech Furor

The U.S. arm of whistle-blower Web site Wikileaks.org, a site designed to make it easier for insiders to leak documents to the public, has gone dark after a California court issued an order to the site's domain registrar and Web host to disallow traffic to the site. However, the site is available here.

Overseas versions of Wikileaks remained active after the order. Though a mirror site in Belgium appeared to be down midday Tuesday, a version based in India remained active.

Exposing Illegal Activities?

Wikileaks held myriad documents relating to a case involving a former Cayman Islands-based employee of Swiss banking giant Bank Julius Baer, who posted papers to the site he says shows money laundering, tax evasion and other activities were rampant in the bank's accounts.

Wikileaks -- which seeks to distinguish itself from other Wiki-style sites by emphasizing that its content is reviewed by analysts and journalists who work for the site before it goes onto the Web -- said it was unaware that an agreement between the Julius Baer and the site's U.S. domain registrar, Dynadot, was being brought before a U.S. District Court judge for review until just hours before the hearing took place.

That judge, Jeffrey S. White, first approved the agreement but later amended his ruling to replace a permanent injunction with a temporary restraining order. The order remains in effect but will be up for review at a hearing on Feb. 29.

Censorship or Something Else?

Ironically, Wikileaks bills itself as "an uncensorable system for untraceable mass document leaking and public analysis."

In a posting to its site, Wikileaks described the judge's order as "clearly unconstitutional" and claimed it exceeds the jurisdiction of the California court that approved it. Dynadot is based in California. Wikileaks also claims that White approved the agreement between Julius Baer and Dynadot after a hearing at which it could not present its own case because it learned of the agreement just hours beforehand.

Rudolf Elmer, a former vice president at Julius Baer who oversaw its Cayman Islands operations, posted the documents in question. Elmer has reportedly turned over to other journalists and investigators some of the documents dating back to 2005, when several mainstream publications ran stories on the leaks themselves.

The documents often include details about the funds kept in bank accounts and how those funds were controlled or handled by the bank; in some cases, the account holders are identified in the documents. One of the reasons many wealthy people turn to offshore institutions such as Swiss and Cayman banks is the ability to remain anonymous.

'Aggressive Actions'

One of several interesting aspects of the case is the fact that the Dynadot chose not to fight on behalf of its Web hosting client, said Mark McCreary, an attorney with Fox Rothschild.

"While First Amendment rights are not an absolute defense to reporting false information, it does appear here that Wikileaks.org is being censored without adequate opportunity to defend or explain its actions and postings," McCreary told LinuxInsider.

However, it is not clear what arguments the bank was putting forward to justify the order and whether it is arguing that the site was breaking the law in any way, he cautioned.

"Without further information, it is too soon to scream censorship from the rafters, but this is a case of very aggressive actions being taken by a host provider," McCreary added. He noted that Dynadot not only shut down the site from receiving traffic, but agreed in the order to lock down the domain name so it cannot be transferred to another host willing to keep it up and running.

Dynadot did not return a call seeking comment Tuesday.

Free Speech or Something Else?

While many weblog postings about the Wikileaks case have been quick to claim that government-backed Web censorship is taking place, the possibility that trade secrets may be involved or that laws may have been broken by leaking the documents do complicate matters significantly, said Bart Lazar, a partner with the law firm of Seyfarth Shaw.

"There is a difference between stating your opinion and illegally posting trade secret information," Lazar told LinuxInsider. "If the information is truly a trade secret, namely it is the subject of reasonable efforts to protect and has value by reason of it being a trade secret, and the trade secret was, in fact, misappropriated, the likelihood is that the case and injunction should be upheld."

That protection is necessary to avoid the financial chaos that would ensue if trade secrets -- Lazar cited the formula for making Coca-Cola as one example of a long-held trade secret -- were widely posted on the Internet.

Wikileaks was founded in 2006 and includes backers on several continents, according to the site. It has posted more than 1 million documents relating to various scandals involving corporate or government corruption. The site has been threatened with censorship in the past; most recently when it sought to reveal the facts that led to the collapse of the United Kingdom's Northern Rock bank under the weight of the subprime lending crisis. That bank was recently bailed out by the UK government.


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