Nathaniel
Update: Cnet.com reports that Wikileaks has won its domain name back after a 90-minute court proceeding.
There are now nearly a hundred fillings in the case Bank Julius Baer & Co. Ltd. et al v. Wikileaks et al, with a battalion of media outlets and activist groups filing friend-of-the-court briefs. You can read all of them here.
Both sides have abandoned their early low profile, with a Baer press release stating that Wikileaks is putting account holders at risk and that, "This matter has nothing whatsoever to do with censorship or The First Amendment." Wikileaks has responded with a flurry of press releases of their own.
The following are press releases I received via email over the last week. They are presented as received and without endorsement. Global Integrity has not confirmed the facts represented here.
Julius Baer STATEMENT ON Wikileaks.org CASEZURICH / NEW YORK, February 28, 2008 --- Julius Baer wishes to address certain misconceptions relating to a recent court decision to take the Wikileaks.org 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.
Contacts:
Neil Shapiro, Intermarket Communications, 212-754-5423 or 917-470-6570
Jenna Agins, Intermarket Communications, 212-754-5610 or 917-470-6563
Martin Mosbacher, Intermarket Communications, 212-754-5449
Wikileaks statement: Wikileaks_blasts_Cayman_Islands_bankThursday February 28, 2008
Bank Julius Baer & Trust -- the Swiss-Cayman "private banking" entity currently attempting to sue Wikileaks before US Federal court Justice Jeffery White in San Francisco today released a press release onto the "Business Wire" vanity wire service. The press release was subsequently picked up by Reuters and other wire services.
Wikileaks responds.
Bank Julies Baer & Trust, from here on in, simply referred to as Baer, claimed in relation to Wikileaks:
"It wasn't our intention to shut down the Web site".
This is a lie.
Baer's requests to the court to do just that are a matter of public record. The only change made by Judge Jeffery White to Baer's proposed "Wikileaks.org' takedown order was to cross out the word 'proposed'! Baer also wrote-for-the-judge a separate order in relation to the documents alone, which was similarly granted. Further, at any time subsequent Baer could have asked the court that its earlier request on the shutdown order be rescinded. It has not done so. While one might be tempted to blame the bank's Hollywood lawyers Lavely & Singer for running amuck, Baer continues to employ the same law firm. This can only be seen as an endorsement of its conduct.
A Wikikeaks statement also highlights court filings of graduate student Daniel Mathews, who says that he has been sued simply for moderating a Wikileaks discussion group on the social networking site Facebook. Coverage here.
Declaration of Daniel Mathews [Exerpt]On February 13, 2008, I was served via email (and also personally) with the Summons, Complaint, and other papers in this action. The emails from Plaintiffs’ counsel stated that I was a “WL Officer.” I am not an “officer” of “Wikileaks” or any other formal or informal organization responsible for the administration or management of Wikileaks. The Wikileaks site lists members of an “advisory board,” but I am notlisted as, and am not, one of them. I immediately responded that I did not know why I was being served with the documents, but that I “presume[d]” plaintiffs’ counsel had served me with the summons “because I am a registered user ofthe wikileaks website and have written some material there. ButI have no other connection to this case, have not read the documents
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from Bank Julius Baer which are the subject of this case, have not written anything about them, and generally know very little about the case.”
12. Plaintiffs’ counsel responded: “Wikileaks lists you as an officer of the company on its Facebook page. As an officer of a defendant in this action, my client is entitled to serve you a copy of the summons and complaint pursuant to Rule 4(h)(1)(B) of the Federal Rules of Civil Procedure.” Facebook is a website created for college students (and now used by others) as a social networking site. The Wikileaks website had invited people to start discussion groups on Facebook and other websites. The Facebook page at issue had identified me as the “Stanford rep.” of the discussion group, and the Facebook term “officer” has no significance; the fact that I am an “admin” merely indicates that I was a moderator of that discussion group. I responded to Plaintiff’s counsel: “I am an officer of a facebook group, which is essentially a message board for discussion of issues relating to wikileaks. I am not, and never have been, an officer of wikileaks,and I request you not to represent that I am.”
Nevertheless, on February 22, 2008, Plaintiffs counsel declared to this Court that “Plaintiffs served a copy of the TRO and OSC on the Wikileaks Defendants via e-mail, per the Court’s prior order, … to the personal e-mail address for a listed officer of Wikileaks.”
Friday, February 29, 2008
Wikileaks Court Fight Heats Up
Monday, February 25, 2008
Global Integrity on NPR All Things Considered
Global Integrity's recent work on freedom of speech online (featured on this blog) is cited on NPR's All Things Considered, in a story on online censorship and Wikileaks.
NPR.org: Ruling to Shut Down Leak Site Called Censorship
Wednesday, February 20, 2008
Wikileaks Responds to Bank Julius Baer
Wikileaks responds to Bank Julius Baer, which has sued Wikileaks and successfully requested that their website Wikileaks.org be blocked. According to a Wikileaks press release, Baer filed papers for an IPO a mere three days before obtaining the censorship order. Wikileaks points out that the ongoing PR disaster for Baer was not well timed.
The current censorship controversy will now inevitably complicate the IPO deal. Says the Wikileaks press release, which I received via email, "Attempting to censor Wikileaks was a very, very expensive mistake for Baer."
Wikileaks has published documents (earlier coverage) which allegedly implicate Baer in money laundering. Baer claims that Wikileaks published and altered documents stolen by a former executive.
Global Integrity has not confirmed the content of this release. Via email: Wilileaks Press Release
Wed Feb 20 23:03:44 GMT 2008
Wikileaks has discovered Bank Julius Baer was preparing to take their US operation public via an a billion dollar IPO. They filed the prospectus with the SEC on Feb 12, a mere three days before convincing Federal court Judge Jeffery White to order total censorship of the transparency site. ( SEC LINK ): "We are an asset management company that provides investment management services to institutional and mutual fund clients. We are best known for our International Equity strategies, which represented 92% of our assets under management as of September 30, 2007." They were going to call the business "Artio" (ticker symbol ART, to be listed on the NYSE). Goldman Sachs and Merrill Lynch were to underwrite the IPO according to Bloomberg (BLOOMBERG LINK)
So the last thing they needed was to be the subject of a New York Times story and all over the world press, associated with money laundering. Now the deal goes under a microscope. Their underwriters have to take a second look and the SEC may have questions. Julius Baer will probably have to file a "material event" 8-K report with the SEC. Newspaper and magazine reporters will be looking at Baer. The question will be raised that the rather high returns Baer reports may be achieved via money laundering.
All this is happening in a down market, in which it is hard to do an IPO and in which investors are very sensitive to unexpected risk. The whole deal may evaporate, or be repriced downward.
Attempting to censor Wikileaks was a very, very expensive mistake for Baer.
Analysis of Orders Against Wikileaks
Judge Jeffery S. White, the judge who ordered Wikileaks.org scrubbed from the Web has begun backpedaling, saying that the site can stay up, as long as it doesn't post any documents (Amended order: pdf download).
Meanwhile, the Law Librarian Blog and Wikileak.org (a blog independent* of Wikileaks.org) have analysis of the judge's rulings. I am amused to note that the court orders were emailed to wikileaks.org after the judge had ruled that the wikeleaks.org domain name be inactivated. This means that while the orders were sent, they weren't received, because the courts had deactivated the defendants email.
Also of interest is the list of parties bound by the order, which must number in the hundreds:"all of the Wikileaks Defendants’ DNS host service providers, ISP’s, domain registrars, website site developers, website operators, website host service providers, and administrative and technical domain contacts, and anyone else responsible or with access to modify the website"
UPDATE: A nice breakdown of the first amendment implications by The California First Amendment Coalition.
*Correction: an early draft stated that wikileak.org and wikileaks.org were affiliated. Wikileak.org is an independent critic of wikileaks.org.
Tuesday, February 19, 2008
Internet Censorship: A Comparative Study
Using data from the Global Integrity Index, we put a U.S. court's recent order to block access to anti-corruption site Wikileaks.org into context. In summary: The Wikileaks.org shutdown is unheard of in the West, and has only been seen in a handful of the most repressive regimes. Good thing it doesn't work very well.
Starting in 2007, Global Integrity added specific questions about Internet censorship to the Integrity Indicators, which are a set of 304 questions addressing the practice of anti-corruption in national governments. We have always held that a free and critical media is an essential component of good governance; adding an analysis of Internet censorship was an overdue refinement.
We asked our local research teams to investigate two questions:
The Many Flavors of Internet Censorship
A few countries, however, are deeply committed to trying to make censorship work. On this list in 2007 are Algeria, China, Egypt, Kazakhstan, Russia and Thailand. Each has it's own flavor to the repression of online speech -- Internet censorship is still in an experimentation phase, and even the most aggressive approaches don't seem to work very well.
- Algeria has no firewalls or filters, but outlaws hosting content critical of the government, and monitors chat rooms for political speech. [source]
- China is home to 1.3 billion people and has a highly scalable technological approach based on extensive content filters known satirically as the Great Firewall of China. China is also uses technology to discourage content creation, deploying cute animated police characters (pictured above) to remind Internet users they are being watched. [source]
- Egypt has limited technical means to discourage content creation, so it relies on an old-fashioned technique -- harassment, beatings and arrests. Hala Al-Masry used to publish in a blog entitled "Cops Without Boundaries" until the government harassed her, "unknown people" beat her father, and she and her husband were arrested and signed a commitment to shut down the blog. Similar techniques have shut down websites of opposition parties. [source]
- Kazakhstan has little Internet capacity. The government uses this to mask censorship -- rather than block sites, it slows them down, frustrating the users of political content into looking elsewhere. The KNB (formerly the KGB) has a special program called Bolat, which slows down, but does not stop, access to sites of terrorist organizations. Popular opinion holds that it is used to slow opposition party sites as well. [source]
- Russia has a mixed bag of state persecution and neglect, allowing a rare opening for free expression in a country with highly restricted media. However, the sophistication of the attacks that do occur is frightening, with hackers singling out individual online targets. For instance, the website of Ekho Moskvy, a liberal Moscow radio station critical of the Kremlin, was brought down by a DDoS attack last year. [source]
- Thailand's military junta moved aggressively to shut down message boards and the formerly-ruling party Thai Rak Thai website after taking over the country in 2006. But the junta's censorship cops work to keep the thinnest appearance of tolerance -- message boards were allowed to reopen under the condition that they did not "provoke any misunderstandings." Message received. [source]
The court order that muzzled Wikileaks.org (covered here) was prompted not by the government but by a bank registered in the Cayman Islands. The bank used American courts and a compliant domain registrar to scrub the wikileaks.org URL from the Internet. It is extremely unlikely that this decision will stand up in an appeals court, but the larger point is that there is no reason this case should even be fought. Wikileaks should not need a legal team to explain to the courts that the First Amendment requires freedom of speech.
The whole event seems to encapsulate the constant criticism of governance in the United States: that the government has been captured by corporate interests, and that the world-leading rule of law and technocratic mechanisms in place can be hijacked to serve as tools for narrow, wealthy interests.
Online Censorship: Sounds good, but it never works.
While there is much diversity in the style of Internet censorship among the world's worst offenders, one common thread unites them: Internet censorship doesn't work. Cut off one site, and a thousand more pop up. In China, censorship online is sparking criticism that off-line censorship has rarely seen.
So Wikileaks.org went offline, but Wikileaks mirror sites hosted overseas hold the same content, and the original site is still up and running from Sweden (http://88.80.13.160) without its easier-to-type URL. As it turns out, shutting down Wikileaks-the-website has focused our attention on Wikileaks-the-idea, which is spreading at the speed of light.
UPDATE: for more reading on anti-corruption, governance and censorship, try the Global Integrity Report. For more on online censorship, try the Electronic Frontier Foundation or the Open Net Initiative.
U.S. Court Order Shuts Down Wikileaks.org
Incredibly, Wikileaks.org, an organization devoted to exposing corruption, has been muzzled by a U.S. court order (pdf download). Rather than attack a specific finding or document, the court has ordered their DNS registrar to essentially erase the organization's website from the Web. While wikileaks.org is down, their site can be found via IP addess: http://88.80.13.160, which is hosted in Sweden.
The order comes at the request of a Swiss bank, Bank Julius Baer, and its Cayman Islands subsidiary who had been implicated in allegedly laundering money by documents posted on wikileaks.org. A recap of Wikileaks coverage of Bank Julius Baer is mirrored here.
I have had several conversations via email with people at Wikileaks as they worked to get their organization started up. I have been deeply impressed with the quality of their early work, and am genuinely shocked at this shutdown order. The U.S. joins China and Thailand in censoring the wikileaks.org website.
From the beginning, the Wikileaks folks have been expecting this kind of reaction all along, and have put serious thought into how to evade this kind of treatment. I thought they were being conspiratorial. I was wrong. I am confident that this will not slow them or their mission.