Bank Julius Baer v. WikiLeaks

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Bank Julius Baer & Co. Ltd. et al. v. Wikileaks et al. was a lawsuit filed by Bank Julius Baer against the website WikiLeaks.

In early February 2008, Judge Jeffrey White of the U.S. District Court for the Northern District of California forced Dynadot, the domain registrar of wikileaks.org, to disassociate the site's domain name records with its servers, preventing use of the domain name to reach the site. Initially, the bank only wanted the documents to be removed (WikiLeaks had failed to name a contact person).

The judge's actions roused media and cyber-liberties groups to defend WikiLeaks' rights under the First Amendment and brought renewed scrutiny to the documents the bank hoped to shield.

The judge lifted the injunction and the bank dropped the case on 5 March 2008.[1]

Background[edit]

In 2002, the bank learned that records pertaining to the arrangement of anonymizing trusts in the Cayman Islands for clients from 1997 to 2002 had been leaked. They interviewed the local employees with a polygraph as per company policy. The bank was unsatisfied with the answers of Cayman unit COO Rudolf Elmer, and terminated his employment. In June 2005, the leak was reported by the Swiss financial weekly Cash and the Wall Street Journal, though details of individual accounts were not reported on.[2] In December 2007, Elmer released documents related to WikiLeaks regarding surveillance of him and his family. The next month, some of the leaked account data began appearing on WikiLeaks. Contributors to WikiLeaks allege that these provide evidence of asset hiding, money laundering and tax evasion. Ten account holders in the United States, Spain, Peru, Germany, Greece, Hong Kong, and Switzerland have been identified so far on WikiLeaks.[citation needed]

According to Daniel Schmitt's analysis for WikiLeaks, leaked account data exists from after the date that Elmer left the Caymans.[3]

On 16 January 2011, Elmer announced he would hand over offshore account details of 2,000 "high net worth individuals" to WikiLeaks. Then he would return to Switzerland from exile to face trial. Julius Baer says Elmer falsified the documents.[4]

The law firm representing Baer was Lavely and Singer. The law firm representing Baer works primarily in the entertainment industry in Los Angeles. They applied for and got the injunction at a court in San Francisco - 450 miles (700 km) from Los Angeles. They claimed to be acting, in part, to protect Baer's customers from having information about the customers become public. But one of the documents filed in court by Lavely and Singer identified one of the customers of interest by name as well as giving his street address.[5]

Legal action, injunction[edit]

In January, Bank Julius Baer began sending cease & desist letters to WikiLeaks and its domain registrar, Dynadot, for the wikileaks.org domain name, citing the DMCA.[6][7] On 18 February 2008, Judge Jeffrey White of the U.S. District Court for the Northern District of California issued a permanent injunction against Dynadot forcing it to "lock the wikileaks.org domain name".[8] Mirror sites, such as http://wikileaks.be, were not affected.[9][10] The text of the posted injunction stated that "immediate harm will result to Plaintiffs in the absence of injunctive relief", as is required for injunctions to be granted. The general assumption is that some leaked documents were alleged by the bank to be libellous, trade secrets, copyrighted, or otherwise prohibited for distribution, in a manner that would cause harm to it.[11]

WikiLeaks had not sent a representative to the hearing at which the injunction was granted. According to an editorial on the WikiLeaks website, Julius Baer had some communication with WikiLeaks before going to court to get the injunction, but did not inform WikiLeaks in which city it would seek the injunction and did not present to the court these email communications.[12]

A coincidental fire at the hosting company used by WikiLeaks, PRQ, centered in a high power supply regulator serving the majority of the data center, shut down and destroyed some sections of the specific DNS and dedicated hosting server racks used by WikiLeaks the same week.

Negative publicity for bank[edit]

The Julius Baer lawsuit drew a great deal more negative attention than would the leaks alone, due to the Streisand effect. Julius Baer had already got an injunction against WikiLeaks, prohibiting WikiLeaks from circulating the documents that Julius Baer wanted to suppress,[13] without attracting significant attention from news media. But then Julius Baer drew a huge amount of attention to itself by seeking and getting a second injunction imposing a measure that would suppress not only the information that Julius Baer considered embarrassing, but also the entire WikiLeaks website consisting of all manner of documents presented as evidence of all manner of crimes - both in corporations and in governments, including human rights abuses - by many alleged criminals worldwide in cases having nothing to do with Julius Baer. For example, the site has given exposure to evidence of human rights abuses in China and political corruption in Kenya.[14][15] The WikiLeaks website claims to have 1.2 million documents that users have posted anonymously to provide evidence of incidents of wrongdoing that deserve public scrutiny.[16] Only 14 of these documents were pertinent to the Julius Baer case.[17]

As well as backfiring in terms of the attention it attracted, the injunction could not be entirely effective in suppressing the website anyway in that the alternate WikiLeaks domains were unaffected, and WikiLeaks was still available directly by its IP address, 88.80.13.160. To shut down these access methods, it would be necessary to pursue injunctions in the jurisdictions where they are registered, or where the servers reside, which are deliberately scattered to make this difficult.[18]

Injunction lifted, case dropped[edit]

After the injunction was initially granted, it was successfully challenged in a joint action by the following intervenors:[19][20][21]

A similar brief was filed by:[21][22]

Another brief in support of WikiLeaks was filed by:[21][22]

  1. Reporters Committee for Freedom of the Press (RCFP)
  2. American Society of Newspaper Editors (ASNE)
  3. Associated Press - (AP) world wide news agency, based in New York
  4. Citizen Media Law Project
  5. E.W. Scripps Company - newspapers, TV, cable TV etc.
  6. Gannett Company, Inc. - the largest publisher of newspapers in the USA, including USA Today
  7. Hearst Corporation - media conglomerate which publishes the San Francisco Chronicle
  8. Los Angeles Times
  9. National Newspaper Association (NNA)
  10. Newspaper Association of America (NAA)
  11. Radio-Television News Directors Association (RTNDA)
  12. Society of Professional Journalists (SPJ) - also provided some legal funding

The First Amendment of the United States Constitution is stated in terms of establishing the right to propagate information. These legal briefs mentioned legal precedents stating that the First Amendment also establishes the right of citizens to read information. One of the participants in the successful challenge to the injunction was Jordan McCorkle, an ordinary citizen who reads the WikiLeaks website regularly.

Judge White dissolved the injunction[23] on 29 February 2008 allowing WikiLeaks to reclaim its domain name.

The bank dropped the case on 5 March 2008.[1]

References[edit]

  1. ^ a b Claburn, Thomas (6 March 2008). "Swiss Bank Abandons Lawsuit Against Wikileaks: The wiki had posted financial documents it said proved tax evasion by Bank Julius Baer's clients". InformationWeek. 
  2. ^ Taylor, Edward (16 June 2005). "Julius Baer Says Unit's Client Data Were Stolen". Wall Street Journal. 
  3. ^ "Clouds on the Cayman tax haven". WikiLeaks. 15 February 2008. 
  4. ^ "Swiss whistleblower Rudolf Elmer plans to hand over offshore banking secrets of the rich and famous to WikiLeaks". The Guardian. 16 January 2011. 
  5. ^ "WikiLeak: Lavely & Singer demonstrate how not to protect the confidentiality of customers of Bank Julius Baer". S.p10.hostingprod.com. Retrieved 10 October 2008. 
  6. ^ "Wikileaks.org under injunction". WikiLeaks (Press release). 18 February 2008. Retrieved 28 February 2008. 
  7. ^ "Bank Julius Baer & Co. Ltd. et al. v. WikiLeaks et al". News.justia.com. Retrieved 2010-12-05. 
  8. ^ WikiLeak: Censorship threats from Lawyers Archives
  9. ^ "Whistle blower site taken offline," BBC News, Monday, 18 February 2008
  10. ^ "Swiss bank obtains injunction against whistleblower site," Director of Finance Online, 19 February 2008
  11. ^ "Making Company Data Truly Public," CorpWatch, 12 March 2008
  12. ^ "Wikileaks blasts Cayman Islands bank". WikiLeaks. Retrieved 10 October 2008. [dead link]
  13. ^ "Legal aid for whistle-blower site," BBC News.
  14. ^ "EFF, ACLU say Wikileaks shutdown harms First Amendment rights". Betanews.com. Retrieved 10 October 2008. 
  15. ^ "EFF, ACLU Move to Intervene in Wikileaks". Electronic Frontier Foundation. 27 February 2008. Retrieved 10 October 2008. 
  16. ^ "About". WikiLeaks. Archived from the original on 4 May 2008. Retrieved 10 October 2008. 
  17. ^ "EFF, ACLU Move to Intervene in Wikileaks Case - USA". Kansas City infoZine News. 9 October 2008. Retrieved 10 October 2008. 
  18. ^ "Vying for Control of the Internet: Is Wikileaks Unstoppable?". The Legality. 27 February 2008. Retrieved 3 March 2008. 
  19. ^ http://www.eff.org/files/filenode/motiontointervene.pdf
  20. ^ "Media and civil liberties organizations file briefs in support of Wikileaks". WikiLeaks. 30 September 2008. Retrieved 9 October 2008. [dead link]
  21. ^ a b c EFF, ACLU. "Bank Julius Baer & Co v. Wikileaks". Electronic Frontier Foundation. Retrieved 10 October 2008. 
  22. ^ a b "Media and civil liberties organizations file briefs in support of Wikileaks - Wikileaks". WikiLeaks. Retrieved 10 October 2008. [dead link]
  23. ^ "Judge reverses ruling in Julius Baer leak case". Reuters. 29 February 2008. Retrieved 29 February 2008. 

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