February 28, 2008

Civil Liberties Groups Come to Wikileak’s Defense

A Swiss bank seeking legal action to shut down the Web site Wikileaks for posting classified documents is experiencing a backlash of unintended consequences.    

Last month, documents from bank Julius Baer containing information about several of its wealthy clients were posted to the Wikileaks.org Web site. One of the clients was San Diego venture capitalist Jonathan Lampitt.

Mr. Lampitt's lawyer, Jim Ellis, said he received a call from a Julius Baer executive warning him of the Wikileaks post.  Julius Baer claimed a disgruntled former employee was the source of the leak.  Ellis said the bank assured him they would do everything possible to remove the documents from the site.

The Wikileaks Web site, purports to discourage unethical behavior by governments and corporations by posting leaked documents online. The site claims to have been launched by Chinese dissidents and other activists who encourage the posting of leaked documents that show unethical behavior of governments and corporations.  According to an Associated Press report, the company said it has posted 1.2 million documents, including a 2003 operation manual for the U.S. prison at Guantanamo Bay, Cuba.

Wikileaks claimed the Julius Baer documents showed money laundering and tax evasion activities at the bank's Cayman Islands branch.

The bank took legal action in U.S. federal court and asked a judge to take down the site. In a move that angered free speech advocates and many others, the judge agreed.

However, instead of the information disappearing, the leaked documents promulgated throughout the Internet, finding their way to other Web sites and to Wikileak "mirror" sites outside the United States.

Mike Masnick, chief executive of Techdirt Inc., called this the "Streisand effect", a term he coined on his own popular technology Web log after Barbra Streisand's lawsuit in 2003 that sought to remove satellite photos of her Malibu house.  The lawsuit backfired, and now the photos are readily available on the Internet.   

Masnick told Associated Press the bank's lawsuit demonstrates the ineffectiveness of such legal actions, when anyone with Internet connection can disregard a judge's ruling and resurrect the "banned" information somewhere else.

"It's a perfect example of the Streisand effect," Masnick said. "This was a really small thing that no one heard about and now it's everywhere and everyone's talking about it."

Ironically, the lawsuit and subsequent judge's order have put the little-known Web site in the spotlight, and the Wikileaks case is now being taken up by civil liberties groups, press organizations and others with censorship concerns.   Subsequent legal filings from the American Civil Liberties Organization (ACLU), the Electronic Frontier Foundation (EFF) and several media organizations, including The Associated Press, will begin being heard Friday when the bank continues efforts to have Wikileaks permanently barred from posting the documents.

The stakes are high for Julius Baer.  For over 100 years the bank has focused its services to the ultra wealthy, and provided the guarantees of discretion and privacy that are central to the Swiss banking system.

"It's a good bank," Ellis told the Associated Press, who said his client was cleared of any wrongdoing by the FBI in 2005.  "But we'll see. My client may get tired of this."

Julius Baer says its lawsuit against Wikileaks and Dynadot, the California company that sold Wikileaks its U.S. domain name, is not a matter of free speech but rather an issue of protecting the privacy of its customers.

"This action has been brought solely to prevent the unlawful dissemination of stolen bank records and personal account information of its customers," the bank's lawyers argued in court papers filed Wednesday. "Many of those documents have also been altered and forged."

The bank rebuked the organizations that have come to Wikileaks' defense this week.

"Quite obviously there will be harm from the widespread dissemination of private and confidential banking information, including account numbers, personal identification numbers, account transactions and history, and account balances," the bank stated, according to an Associated Press report. "Wikileaks has laid bare a road map for the unsavory to engage in identity theft and electronic theft of account balances."

U.S. District Judge Jeffrey White in San Francisco, who made the ruling to shut down Wikileaks.org, has drawn extensive criticism for ordering the disabling of the entire Web site rather than issuing a more narrowly tailored order to remove only the bank's documents.

"Blocking access to the entire site in response to a few documents posted there completely disregards the public's right to know," said Ann Brick, an attorney for the American Civil Liberties Union, in an Associated Press report.

To date, Wikileaks has not shown up in court nor has it responded to court orders for legal filings stating its position. Company representatives have not responded to e-mail inquiries into whether they plan to appear at the court hearing Friday.

"If they defy the court and refuse to participate, Wikileaks will have crossed a very serious line," said Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists in Washington, D.C., in an Associated Press report.  "They are basically functioning as an anarchist entity, not a protest group."