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Sunday, March 02, 2008

Wikileaks gets its name back and leaves unanswered questions

Recently a California district court has ordered the website, a site where whistleblowers can post documents anonymously, be taken down. On February 29, 2008, it was reported that after hearing arguments, a federal judge withdrew that order.
In a world where technological advances seems to move faster than the justice system can keep up, the original order to shut down Wikileaks in its entirety, which represented more than just a need to protect private banking information, which was at the heart of this case, it touched on Free Speech issues as well as highlighting the difficulties of stopping the flow of information once it has been published on the internet.

Back story:

Wikileaks is a site set up for whistleblowers, where internal documents from a variety of sources can be posted in the site by anonymous sources.

Wikileaks is developing an uncensorable system for untraceable mass document leaking and public analysis. Our primary interests are in Asia, the former Soviet bloc, Latin America, Sub-Saharan Africa and the Middle East, but we expect to be of assistance to peoples of all countries who wish to reveal unethical behavior in their governments and corporations. We aim for maximum political impact

As reported on February 18, 2008, internal documents from Julius Baer, a Swiss bank, had been leaked and published on Wikileaks. Julius Baer went to court trying to get the sensitive private banking information removed from Wikileaks and in response to that action, a California district court ordered Dynadot, which hosts the sites domain name to remove the site as well as all traces of Wikileaks from its servers.

That went beyond the scope of what Julius Baer had asked for the court to do as I found out from an email sent to me, after I wrote about this issue, from Julius Baer:

ZURICH / NEW YORK, February 28, 2008 --- Julius Baer wishes to address certain misconceptions relating to a recent court decision to take the website off line.

This decision was arrived at only after a month long effort on the part of Julius Baer and its advisors had failed to identify and engage the operators of Wikileaks in a dialogue regarding the unlawful posting of stolen and forged bank records. This matter has nothing whatsoever to do with censorship or The First Amendment. Instead, Julius Baer’s sole objective has always been limited to the removal of these private and legally protected documents from the website.

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 is not and has never been Julius Baer’s intention to stifle anyone’s right to free speech. Indeed, Julius Baer has specifically made no attempt to remove material on the website which refers to the organization but which does not include information personal to its customers. However, Julius Baer denies the authenticity of this material and wholly rejects the serious and defamatory allegations which it contains.

Which brings us to today's news that a federal court judge withdrew the previous injunction against Wikileaks and they are back up and running.

I note the judge's remark because it shows the problems the court system faces in regards to the internet and our technology of today.

Judge Jeffrey S. White, the same judge that first ordered the site to be shut down, in overturning that decision, points out that once the documents were online, the court might well be powerless, adding, "Maybe that’s just the reality of the world that we live in. When this genie gets out of the bottle, that’s it."

As we showed in the previous piece on this subject, mirror sites, which are exact copies of another Internet site, sprang up all over the Internet, all of which reproducing the site that had been shut down and all of which showing the original bank documents that the previous ordered had tried to take offline, something almost impossible to do once information has been put onto the Internet.

The judge's problem became apparent when he acknowledged there seemed to be no way to protect bank customer's private information and at the same time protect Wikileak's free speech rights.

This judgment obviously isn't the last we will hear of this case because more questions were brought up in the course of this three hour court hearing, one of which was what legal actions Julius Baer, or their costumers, could actually take against Wikileaks for publishing private banking information, account numbers and personal numbers like Social Security numbers.

Wikileaks defines itself, on their "about" page, under the who is behind Wikileaks heading, as "founded by Chinese dissidents, journalists, mathematicians and startup company technologists, from the US, Taiwan, Europe, Australia and South Africa."

Most companies or individuals have a citizens status which would determine if they are subject to a court's jurisdiction, but as Judge White points out, Wikileaks was not represented by their own lawyers throughout the proceedings, saying "Whatever this entity is, it has not filed a response."

Instead a long list of free speech groups requested to intervene in the case on behalf of Wikileaks, those include, Public Citizen, the California First Amendment Coalition, the American Civil Liberties Union, the Project on Government Oversight, and the Electronic Frontier Foundation and they argued that Wikileaks can't be sued in a U.S. court by a foreign company because it consists of foreigners.

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.

This puts those of us watching this case in a hold pattern until the next set of hearings begin and it also leaves us with some questions of our own.

In some cases whistleblowers have done the public some good, bringing to light illegalities to which the public would never have known about and in other cases whistleblower status has been used by leaking documents for no other reason than to hurt a company that has perhaps offended a former employee.

What happens to those caught in the middle, the ordinary citizen that has their private information splashed all across the Internet, the every day Jane or John Doe, who has had their Social Security numbers or any other private information exposed to the world via the Internet?

Can the courts around the world protect the citizens caught in the middle without trampling on free speech rights or is it as Judge White said, almost impossible to put the genie back in the bottle once it is out?

Will the court system ever be able to keep up with the technological advances being made in leaps and bounds on the World Wide Web?