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| Bank Julius Baer & Co. Ltd. | |
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| In
November of 2007, “Wikileaks.org” proved itself more effective than the
Freedom of Information Act in providing information regarding the
United States military detention facilities at Guantánamo Bay, Cuba.
Since 2003, the Pentagon had resisted an American Civil Liberties Union
Freedom of Information Act request for the 238-page, “Camp Delta
Standard Operating Procedures” manual dated March 28, 2003. However, in
November of 2007, WikiLeaks.org anonymously published a copy of the
manual that the Pentagon grudgingly confirmed was authentic. WikiLeaks.org is an international website, formatted like the popular Wikipedia.com, with the goal of “developing an uncensorable Wikipedia for untraceable mass document leaking and analysis.” The site quickly became popular for some profound successes eluding court gag orders and providing a forum for whistleblowers. Contributors or organizers of the site include “Chinese dissidents, journalists, mathematicians and startup company technologists, from the US, Taiwan, Europe, Australia and South Africa,” and a “public Advisory Board,” consisting of “journalists, representatives from refugee communities, ethics and anti-corruption campaigners, including a former national head of Transparency International, human rights campaigners, lawyers and cryptographers. The site is also recently responsible for leaking several Bank Julius Baer documents from a Swiss banking whistleblower purportedly showing offshore tax evasion and money laundering by wealthy and politically sensitive clients from the US, Europe, China and Peru. The Bank succeeded in temporarily shutting down the site by obtaining what purported to be a “Permanent Injunction” issued on February 15, 2008, by District Court Judge Jeffery White of the California Northern District Court in San Francisco, by aiming their request for an injunction against the Domain Name Registrar, rather than the actual publishers of the material who would have been outside of the US jurisdiction. Apparently upon Dynadot’s (the Domain Name Registrar) stipulation, the court ordered Dynadot to use its access to the Internet website name registration system to delete the records for “Wikileaks.org” and to replace the content with a blank page. The Court also issued Temporary Restraining Orders preventing anyone aware of the injunction from linking to the site’s content. However, the site was almost immediately back up and running under its many “back-up” international sites and domain names despite the order. On February 29, 2008, the court reversed its prior orders after it was bombarded with several motions and briefs in support of the site and its right to operate. Twelve media organizations filed a joint Amici Curiae (“friends of the Court”) brief in support of the site opposing the “permanent” and temporary injunctions, including the Reporters Committee for the Freedom of the Press (RCFP), The American Society of Newspaper Editors (ASNE), The Associated Press (AP), Citizen Media Law Project, The E.W. Scripps Company (newspapers, TV, cable TV etc.), Gannet Co. Inc. (largest publisher of newspapers in the US, including USA Today), The Hearst Corporation (media conglomerate which publishes the San Francisco Chronicle), The Los Angeles Times, National Newspaper Association (NNA), Newspaper Association of America (NAA), The Radio-Television News Directors Association (RTNDA), and The Society of Professional Journalists (SPJ). The Public Citizen Group, founded by Ralph Nader and the California First Amendment Coalition (CFAC) also filed a separate brief in support of the site. Finally, The Electronic Freedom Foundation (EFF), the American Civil Liberties Union (ACLU), The Project on Government Oversight (POGO), and Jordan McCorckle (an individual at the University of Texas and user of WikiLeaks.org) filed their own motion to intervene as Defendants in the case. Among other arguments made in the briefs, those supporting WikiLeaks pointed to the overly broad nature of the injunction against the site’s total operation as an unconstitutional prior restraint on the public’s right to access information guaranteed by the First Amendment, tantamount to shutting down an entire newspaper because of the content of one article. The Court agreed, and dissolved the “permanent injunction” and declined to extend the temporary restraining orders previously issued, stating that neither was narrowly tailored enough to be appropriate even if a more limited injunction redacting personal information from specific documents may be constitutional given sufficient evidence. For copies of the Court’s February 15th and February 29th orders, go to 021508 Order, 021508 TRO, 021508 Order to Seal, and 022908 Order |
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