Politics and Law

A Swiss bank that successfully sued to yank the Wikileaks.org domain name, and then faced a severe setback in a subsequent court ruling, has given up for now.

Bank Julius Baer filed a brief note with a court in San Francisco Wednesday saying it would voluntarily dismiss its own case, while reserving the right to file it again in the future or pursue it "in an alternate court, jurisdiction, or venue."

BJB's sudden move comes a few days after U.S. District Judge Jeffrey White reversed his earlier ruling (which pulled the plug on the Wikileaks.org domain) and said he was skeptical of the bank's ability to win the suit.

"This dismissal comes in the wake of our private warning to the bank's counsel that, if the case were not dismissed, not only the existing defendants but the intervening defendants such as Public Citizen and the California First Amendment Project could seek attorneys' fees under California law that is designed to protect the exercise of First Amendment rights on matters of public interest against meritless lawsuits such as this one," said Paul Levy, an attorney with Public Citizen who filed a motion to intervene in the case and argued before White last Friday.

After Public Citizen and a host of other groups--including the California First Amendment Coalition, the American Civil Liberties Union, the Project on Government Oversight, and the Electronic Frontier Foundation--presented their arguments, White seemed to have a change of heart. His written order dissolving the injunctions said he had concerns about whether the court had jurisdiction over the case and whether the injunction would even be halfway effective. The order said he also had concerns that an injunction could violate the free speech rights protected by the First Amendment.

White's original rulings did two things: First, they ordered the Dynadot domain registrar to suspend the Wikileaks.org registration and prevent the transfer to another registrar. Second, in the order against Wikileaks itself, he said the defendants were "enjoined from displaying, posting, publishing, distributing, linking to, and/or otherwise providing any information" that the Bank Julius Baer considers to be confidential. The bank boasts that it is the "leading dedicated wealth manager in Switzerland."

Wikileaks' summary of the leaked documents centers on Rudolf Elmer, the former chief operating officer of Bank Julius Baer in the Cayman Islands. The summary alleges that the bank supports "ultra-rich's offshore tax avoidance, tax evasion, asset hiding and money laundering."

The bank had said in a statement last week: "The documents in question are protected and prohibited from unauthorized publication under U.S., California, and foreign consumer banking and privacy protection laws. The posting of confidential bank records by anonymous sources significantly harms the privacy rights of all individuals." It also added, referring to Wikileaks' summary: "Julius Baer denies the authenticity of this material and wholly rejects the serious and defamatory allegations which it contains."

Public Citizen attorney Paul Levy, who had asked to intervene in the case on behalf of Wikileaks, speaks to reporters outside the federal courthouse in San Francisco after the judge hands down his ruling.

(Credit: Declan McCullagh/CNET News.com)

Updated at 1:42 p.m. and again at 5:02 p.m. PST.

SAN FRANCISCO--Wikileaks is getting its domain name back.

After spending more than three hours hearing arguments from a raft of attorneys--two representing the Swiss bank that fought to get the site's plug pulled and about 10 who have been trying to get the site back online--a federal judge here has ruled in favor of Wikileaks.

Wikileaks, which uses Wikileaks.org as its primary domain, is a whistle-blowing site that focuses on posting leaked documents.

"The court denies the motion for preliminary injunction, and the court hereby dissolves the injunction against (domain name registrar) Dynadot, and the litigation may now proceed," said U.S. District Judge Jeffrey White, who had called a brief recess around 11:40 a.m. PST, indicating that he was inclined to revisit his order from earlier this month that effectively pulled the plug on the Wikileaks.org domain name.

White said he will issue a written order very soon and added that he is skeptical that an injunction would survive free-speech scrutiny: "There are serious questions about prior restraint, possible violations of the First Amendment, which the court can make no definitive findings about at this point."

"The court has the obligation to get it right," White had told attorneys for Bank Julius Baer, or BJB, earlier Friday. "I took an obligation to uphold the Constitution. The court has its own obligation to raise these issues. Contrary to what you say, my obligation is to look down the road and see where this thing is going."

From the bank's perspective, it sued Wikileaks in federal court in California because the registrar, Dynadot, is located here. (Wikileaks alleges that the documents in question show that the bank supports the "ultrarich's offshore tax avoidance, tax evasion, asset hiding, and money laundering.")

But a host of free-speech groups, including Public Citizen, the California First Amendment Coalition, the American Civil Liberties Union, the Project on Government Oversight, and the Electronic Frontier Foundation, requested to intervene in the case on behalf of Wikileaks.

They threw down a series of legal land mines against BJB, including that Wikileaks can't be sued in a U.S. court by a foreign company because it consists of foreigners; that Section 230 of the Communications Decency Act prevents any action against Dynadot; that the First Amendment prohibits an overly broad attack against a Web site just to delete a subset of pages; that Dynadot cannot refuse to transfer the domain name to another registrar; and so on.

Some of the filings amounted to an implicit criticism of White, who granted the allegedly First Amendment-problematic order in the first place. So the first thing White did on Friday was defend himself--more to the half dozen reporters in the back of the room than to the attorneys.

"The parties need to understand, and those in this courtroom need to understand, the status of this case," White said. "This is a case in which we had a (dispute) with named parties, and the parties were duly served. One of which properly responded and came to this court with a proposed settlement in this lawsuit...Nobody filed any timely responses to the court's order."

While giving his ruling, White explained that the case is properly in his jurisdiction, in part because the domain name holder, an Australian citizen living in Kenya, sent an attorney to court Friday.

One attorney for BJB said there were no First Amendment problems, invoking a U.S. Supreme Court precedent dealing with an intercepted conversation played by a radio station because, "We allege, your honor, that Wikileaks has actively solicited the theft of private information...they are participants in the illegality."

BJB also said, "We're talking about private banking information, account numbers, personal numbers like Social Security numbers...all this is private information that's not newsworthy...None of the publishers here today would want their own banking information posted on the Internet."

The judge's preruling reply: "Let me play devil's advocate here. Is it newsworthy if some prominent citizen is...evading taxes, laundering funds? Wouldn't that be something in the public interest?"

(Update 5:02 p.m. PST) The judge's written opinion is out. It does three things; it denies BJB's request for a preliminary injunction; it dissolves the permanent injunction against Dynadot; and it sets a hearing schedule. One key phrase: "It is clear that in all but the most exceptional circumstances, an injunction restricting speech pending final resolution of the constitutional concerns is impermissible." As for the timing, the motions are due March 14, oppositions to those motions are due March 28, and reply briefs are due on April 4. The next hearing will be on May 16 at 9 a.m.

Wikileaks.org, a Web site that specializes in posting leaked documents often provided by whistleblowers, had its domain name yanked by a federal judge in California earlier this month.

Now Wikileaks is receiving some independent legal support from free speech groups, including Public Citizen, the California First Amendment Coalition, the American Civil Liberties Union, the Project on Government Oversight, and the Electronic Frontier Foundation. They--and some media organizations also expected to file a brief--are asking to intervene on Wikileaks' behalf.

These folks are the .50 caliber rifles (or, perhaps the .818 caliber Solothurns) of the modern free speech movement. If anyone can convince a judge to rethink the domain name prohibition, it's probably them.

They stand a good chance. One reason why U.S. District Judge Jeffrey White ordered the domain name offline was that Wikileaks had not sent a lawyer to a hearing or responded in any form. After that, a judgment for the plaintffs wasn't exactly a surprise.

Wikileaks, by the way, was sued by a group of Swiss bankers--Bank Julius Baer--who claim in the lawsuit that confidential information is on the site. Wikileaks is still online at the Internet address http://88.80.13.160/wiki/Wikileaks and a host of mirrors including wikileaks.cx.

White has scheduled a hearing for Friday morning in San Francisco to hear whether to extend the restraining order restricting the distribution of the documents.

The arguments that Public Knowledge Citizen and the CFAC make include:

The court lacks jurisdiction of the subject matter...This is a dispute between a Swiss bank and a Swiss citizen who is using an entity with foreign citizenship, Wikileaks, to post documents online. Federal courts are not available for the litigation of such cases.

Plaintiffs have not overcome the First Amendment free speech rights of Wikileaks and its members, not to speak of the First Amendment rights of Public Citizen, the California First Amendment Coalition, and their members, to read the Wikileaks Web site.

And the EFF/ACLU/etc. motion adds:

The permanent injunction has the effect of blocking access by anyone in the United States (and the world) to the Wikileaks Web site through the wikileaks.org domain name. As a result, it impedes access to the entire Wikileaks site, not just the documents that BJB claims are at issue in this litigation.

In other words, it's a bit like Apple not liking CNET News.com's scoop a few years ago (which it was) about the switch to Intel microprocessors--and then trying to yank our domain name through a court injunction. Or AT&T trying to get us taken off the Internet after our story about how its lawyers filed an improperly redacted brief in the litigation over National Security Agency surveillance.

Free speech matters. First principles matter. Wikileaks may not be exactly a news organization in the traditional sense, but precedents set in this case could ripple far beyond Judge White's courtroom in San Francisco.

A federal judge in California has pulled the plug on Wikileaks.org, a Web site that specializes in posting leaked documents often provided by whistleblowers.

U.S. District Judge Jeffrey White on Friday ordered that the domain name be disabled at the behest of a group of Swiss bankers who filed a lawsuit alleging that confidential information appeared on Wikileaks.org.

White's order to Dynadot, the registrar with which Wikileaks appears to have been associated, says:

Dynadot shall immediately lock the wikileaks.org domain name to prevent transfer of the domain name to a different domain registrar, and shall immediately disable the wikileaks.org domain name and account to prevent access to and any changes from being made to the domain name and account information, until further order of this Court.

Dynadot shall immediately disable the wikileaks.org domain name and account such that the optional privacy who-is service for the domain name and account remains turned off, until further order of this Court.

Dynadot shall preserve a true and correct copy of both current and any and all prior or previous administrative and account records and data for the wikileaks.org domain name and account.

In addition, White granted a restraining order against Wikileaks itself, saying the defendants were "enjoined from displaying, posting, publishing, distributing, linking to and/or otherwise providing any information" that the Bank Julius Baer considers to be confidential. The bank boasts that it is the "leading dedicated wealth manager in Switzerland."

If the first few weeks of this lawsuit are any indication -- it was filed on February 6 -- it could easily spiral out of control. The folks behind Wikileaks have chosen to remain anonymous, and have said in the past that they are developing "uncensorable" countermeasures to defend against legal attacks.

One countermeasure was registering the domain anonymously; it's now, however, listed as registered to a "John Shipton" in Nairobi. Another is using anonymous email addresses at hush.com. Yet another was trying to transfer the domain name away from Dynadot (which does not seem to have been done in time). For more, here's an excerpt from a legal brief that the bank filed last week:

In order to hide their location, the Wikileaks Defendants use non-traceable "anonymous" e-mail addresses and operate a Website for the express stated purpose of providing "uncensorable," "simple and straightforward means for anonymous" and "untraceable mass document leaking," regardless of legality or authenticity. In fact, in self-response to a question they posted on their own Website, "Is Wikileaks concerned about any legal consequences?", they state that "... we are prepared, structurally and technically, to deal with all legal attacks..."

The long-standing Internet trick of mirroring is working, at least until Bank Julius Baer escalates the lawsuit by naming a whole slew of potential defendants. (Remember, in the DeCSS case, the DVD Copy Control Association sued 500 "John Does.")

The cryptome.org site, run by architect-turned-free-expression-activist John Young, has posted a 3MB Zip file of the Bank Julius Baer documents. They're on BitTorrent, of course, and some Wikileaks supporters are urging others to mirror or use the http://88.80.13.160/wiki/Wikileaks numeric IP address instead.

Wikileaks' summary of the leaked documents centers on Rudolf Elmer, the former chief operating officer of Bank Julius Baer in the Cayman Islands. The summary alleges the bank supports "ultra-rich's (sic) offshore tax avoidance, tax evasion, asset hiding and money laundering." The bank has refused to comment.

Earlier, ah, leaks by the site have included an operations manual for the Guantanamo Bay detention camp and documents on Kenyan government corruption that were cited by the U.K. Guardian newspaper.

For now, the allegedly incriminating bank documents remain online, barring an escalation of legal activity by the bank's lawyers. In addition, Wikileaks seems to have prepared for this day by registering a slew of domain names (although the number of actual servers being used right now is far smaller):

http://wikileaks.cx/
http://wikileaks.be/
http://wikileaks.la/
http://wikileaks.de/
http://wikileaks.org.uk/
http://wikileaks.tl/
http://wikileaks.in/
http://wikileaks.info/
http://wikileaks.es/
http://wikileaks.ws/
https://secure.libertypen.org/wiki/Wikileaks