Wikileaks Ruling Nears, May Impact Net Free Speech

A federal judge is scheduled to hear arguments today on whether to uphold the block on Wikileaks, a site created for anonymous whistleblowers to post documents detailing corporate improprieties or government misconduct.

Earlier this month, Judge Jeffrey White of the U.S. District Court in San Francisco ordered the domain name locked and disabled during a pending lawsuit. (The site can still be accessed in the United States at

[cob:Related_Articles]Julius Baer Bank and Trust brought the Feb. 6 lawsuit against Wikileaks and its domain registrar, Dynadot, claiming that the site had posted fraudulent documents that revealed personal information about customers of its Cayman Islands subsidiary.

The documents detailed evidence of extremely wealthy clients washing money through illegal offshore tax shelters set up through Baer Julius. The bank claimed the documents were forged, leaked by Rudolf Elmer, a former deputy director of the Cayman Islands office.

While today’s hearing had been originally slated to address the relatively narrow matter of the leaked documents and whether to uphold the injunction, it has ballooned into a much broader debate over free speech and the Internet.

As a result, activist groups like the Electronic Frontier Foundation (EFF) and the American Civil Liberties Union have rallied behind Wikileaks.

“Julius Baer’s private dispute regarding a former employee’s alleged violation of a confidentiality agreement does not warrant this attempt to block access to all material hosted on Wikileaks,” EFF Senior Staff Attorney Matt Zimmerman said in a statement.

“The First Amendment rights of readers who have a legitimate interest in the materials posted on the Web site simply cannot be treated as acceptable collateral damage to the bank’s claims,” he said.

Last night, White issued the litigants a series of questions for them to address during today’s hearing, indicating just how wide a lens today’s proceeding will take. White asked whether Baer Julius’ grievance should be against Elmer, the former employee alleged to have leaked the documents, rather than Wikileaks and its registrar.

That question revisits a 2001 U.S. Supreme Court decision protecting entities that publish legally obtained information deemed to be in the public interest.

White also raised the parties to weigh in on whether the “right to privacy trumps the freedom of access to information,” citing several previous cases which had also examined the balance between privacy rights and First Amendment protections.

The judge also invited several media organizations and industry groups that have taken an interest in the case to appear as amicus curiae in today’s hearings. Among the parties invited are the Associated Press, the Newspaper Association of America and the Reporters Committee for Freedom of the Press Media organizations.

The plaintiff, however, is aiming to distance itself from broader issues.

In a statement released yesterday, Julius Baer claimed that the case had “nothing whatsoever to do with censorship of the First Amendment,” and that it had no desire to shut the site down.

Instead, the bank claimed that it merely sought legal relief to prevent the publication of bank records that compromise its customers’ privacy.

Wikileaks fired back in a statement on its site, charging that Julius Baer had expressed its desire to shut it down in court filings.

It also claimed that the bank had mischaracterized the disputed documents as “bank records” and vastly overstated the severity of the privacy concerns.

Last night also marked the formal entry of owner John Shipton into the fray. A filing from Shipton’s attorneys said that the “citizen of Australia currently residing in Kenya” would appear in court to defend his interests. So far, Wikileaks has not been represented by counsel in the court.

Lawyers for Shipton said he supported the amicus briefs filed by the activist groups and the media organizations on behalf of Wikileaks.

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