I. Introduction
Wikileaks.org, a website dedicated to compiling leaked
documents from governments and corporations, has sought to hold
large-scale entities more accountable for their actions through greater
transparency of information. [1] However, by publishing sensitive
information it believes to be in the public interest, coupled with the
fact that the site has a completely anonymous user base, the site has
aroused the ire of international governments and businesses alike. [2]
A recent lawsuit by a Swiss bank in which the bank sought (and briefly
received) a permanent injunction to shut down Wikileaks highlights how
much controversy the site has generated in its relatively short life
span. [3] While some critics try to paint Wikileaks as a site that
engenders illegal activity and as a site that is a threat to privacy,
neither claim can be properly substantiated. [4] Though Wikileaks is
controversial, most forms of speech displayed on the site are protected
by the First Amendment. [5]
II. Bank Julius Baer v. Wikileaks: Free Speech and Business Interests Collide
In January 2008, the Swiss bank, Bank Julius Baer (BJB),
began sending cease and desist letters to Wikileaks to remove fourteen
documents alleged to contain sensitive information about personal
transactions of bank customers. [6] After receiving no response to
those letters, in early February BJB chose to file suit against
Wikileaks and its webhost Dynadot in the United States District Court
for the Northern District of California. [7] Most directly, BJB sought
injunctive relief from the court to force Wikileaks and Dynadot to
remove the documents. [8] Interestingly, there is strong agreement
among commentators and Wikileaks contributors that BJB intensely
desired to suppress the documents because they exposed “asset hiding,
money laundering and tax evasion” by bank clients. [9]
Both the Freedom of Information Act (FOIA) and United
States Supreme Court jurisprudence liberate the vast majority of
governmental documents or documents deemed to be “in the area of
political discourse.” [10] But with regard to business documents, the
landscape is invariably more complicated. Privacy protections exist in
every state for various kinds of sensitive corporate data, including
trade secrets and personal bank account information. [11] The remedies
under these kinds of statutes are directly limited to the offending
data, requiring either the removal of the data from the public sphere
or tort liability for the damages caused by that information going
public (or most likely, both). [12]
Had the court chosen to grant only the relief explicitly
declared by BJB, this case would have been simple and unremarkable:
the documents did contain sensitive data about clients (including
personal identification and account numbers) that governing California
substantive laws and regulations protect as part of the private sphere,
and thus removal of the documents from the site would have been a
wholly appropriate remedy. [13]
III. The Court’s Issuance of a Permanent Injunction
Instead, the court took a fantastically drastic step at
the suggestion of a conclusory footnote remark in a BJB memorandum.
[14] The footnote declared that because Wikileaks operated
anonymously, “it [is] necessary to issue injunctive relief requiring
Dynadot to remove the DNS records to prevent the website from
displaying the [Bank Julius Baer] Property.” [15] In essence, this
footnote asserted that shutting the entire domain down was “necessary”
to prevent the anonymous site from displaying the small amount of
offending data, without offering any supporting arguments for that
outlandish claim. Any person with minimal understanding of the
internet could easily recognize that forcing a domain to shut down to
prevent the viewing of specific, illegal content is by no means
necessary; a court order demanding the takedown of those particular
files would have completely prevented the harm to BJB without censoring
the rest of the site’s First Amendment-protected material.
Quite simply, there is no plausible interpretation of
current copyright and First Amendment jurisprudence that can
substantiate the court’s decision to shut down the domain as a whole.
[16] Furthermore, it seems extraordinarily strange that the court
would grant such a drastic remedy when BJB did not even pray for it
directly–an unsupported conclusion hidden in a footnote is generally
not sufficient to state a claim for relief.
Both fortunately and surprisingly–and perhaps in large
part due to the overwhelming influx of supporting legal arguments from
civil liberties groups like the Electronic Frontier Foundation and the
American Civil Liberties Union and the extensive press coverage for
this high profile case–the federal judge decided to overturn his grant
of the permanent injunction less than two weeks after initially
granting it. [17] Citing, among other newfound and profound gaps in
BJB’s legal arguments, the fact that such a drastic remedy was
unnecessary to prevent the harm to BJB, the judge completely rescinded
the order and allowed for Wikileaks to again utilize its domain name.
[18]
Unsurprisingly, BJB suffered significant damage to its
reputation in the course of this suit. [19] What is perhaps a bit
ironic is that by trying hard to suppress the information about the
wrongdoing of its clients, it likely drew significantly more negative
attention to itself than it would have had it allowed the files to
remain online or had it only requested the court to take the files down
without interfering with the whole domain. [20] BJB voluntarily
dropped the case on March 5, but not before registering a twenty
percent fall in the value of its stock as compared to January–before
it initiated any of the proceedings. [21]
IV. Conclusion
Perhaps from the standpoint of pure business interests,
Wikileaks is an unfortunate necessity–it does businesses very little
direct, tangible good to know that while many documents are protected
by various business privacy laws, some sensitive information could
legally be displayed to the public at large. Even worse, Bank Julius
Baer has proven that while having leaked documents posted online might
be damaging to corporate reputation, gaining a reputation for
suppressing free speech can be even more injurious. Wikileaks’s
anonymous posting of documents is, in general, a form of speech
protected by the First Amendment, though that freedom is appropriately
limited by a variety of privacy laws protecting businesses.
Substantive provisions in both intellectual property and corporate law
protect the most sensitive kinds of data, and the rest are potentially
free for public scrutiny. But even where such laws do apply, a
business cannot simply hope to squash the whole site in order to remove
a few offending files–or as a lawyer for Wikileaks quipped, "The
Supreme Court has warned against 'burning down the house to roast the
pig.'" [22]
Wikileaks has the potential to be an extraordinarily
powerful, journalistic tool, and its existence could actually be a
powerful positive for businesses in a more indirect way: in this
recent era where white collar scandals like Enron and WorldCom have
stormed the media scene, the existence of a tool like Wikileaks that
endeavors for greater transparency could inspire businesses to be more
ethical–or at the very least more worried about the likelihood that
their wrongdoing could be discovered.
Sources
[1] Tracy Samantha Schmidt, A Wiki for Whistle-Blowers, Time, Jan. 22, 2007, available at http://www.time.com/time/nation/article/0,8599,1581189,00.html?cnn=yes.
[2] J. Aaron Landau, Vying For Control of the Internet: Is Wikileaks Unstoppable?, theLegality, Feb. 27, 2008, available at http://www.thelegality.com/archives/28.
[3] Matt Zimmerman, EFF, ACLU Move to Intervene in Wikileaks Case, Feb. 27, 2008, available at http://www.eff.org/press/archives/2008/02/26-0.
[4] Bank Julius Baer v. Wikileaks, Case No. CV08-0824, Plaintiff's
Memorandum of Points and Authorities in Support of Application for TRO
and OSC Re Preliminary Injunction, Feb. 7, 2008, available at http://docs.justia.com/cases/federal/district-courts/california/candce/3:2008cv00824/200125/6/.
[5] J. Aaron Landau, Vying For Control of the Internet: Is Wikileaks
Unstoppable?, theLegality, Feb. 27, 2008, available at
http://www.thelegality.com/archives/28.
[6] Id.
[7] Matt Zimmerman, EFF, ACLU Move to Intervene in Wikileaks Case, Feb. 27, 2008, available at http://www.eff.org/press/archives/2008/02/26-0.
[8] Bank Julius Baer v. Wikileaks, Complaint Against Wikileaks, Feb. 6, 2008, available at http://docs.justia.com/cases/federal/district-courts/california/candce/3:2008cv00824/200125/1/.
[9] J. Aaron Landau, Vying For Control of the Internet: Is Wikileaks
Unstoppable?, theLegality, Feb. 27, 2008, available at
http://www.thelegality.com/archives/28.
[10] Scott Bradner, Wikileaks: a site for exposure, LinuxWorld, Jan. 18, 2007, available at http://www.linuxworld.com.au/index.php/id;1264532314;fp;2;fpid;1.
[11] Gene Quinn, Trade Secrets, IPWatchdog.com, available at http://www.ipwatchdog.com/tradesecret/.
[12] Id.
[13] J. Aaron Landau, Vying For Control of the Internet: Is Wikileaks
Unstoppable?, theLegality, Feb. 27, 2008, available at
http://www.thelegality.com/archives/28.
[14] Bank Julius Baer v. Wikileaks, Case No. CV08-0824, Plaintiff's
Memorandum of Points and Authorities in Support of Application for TRO
and OSC Re Preliminary Injunction, Feb. 7, 2008, available at
http://docs.justia.com/cases/federal/district-courts/california/candce/3:2008cv00824/200125/6/.
[15] Id.
[16] J. Aaron Landau, Vying For Control of the Internet: Is Wikileaks
Unstoppable?, theLegality, Feb. 27, 2008, available at
http://www.thelegality.com/archives/28.
[17] Thomas Claburn, Swiss Bank Abandons Lawsuit Against Wikileaks,
Information Week, March 6, 2008, available at
http://www.informationweek.com/management/showArticle.jhtml?articleID=206902154;
John Timmer, Heavy legal guns ask judge to reverse Wikileaks shutdown,
ars technica, Feb. 27, 2008, available at
http://arstechnica.com/news.ars/post/20080227-heavy-legal-guns-ask-judge-to-reverse-wikileaks-shutdown.html.
[18] Thomas Claburn, Swiss Bank Abandons Lawsuit Against Wikileaks, Information Week, March 6, 2008, available at http://www.informationweek.com/management/showArticle.jhtml?articleID=206902154.
[19] Id.
[20] Id.
[21] Id.
[22] John Timmer, Heavy legal guns ask judge to reverse Wikileaks shutdown, ars technica, Feb. 27, 2008, available at http://arstechnica.com/news.ars/post/20080227-heavy-legal-guns-ask-judge-to-reverse-wikileaks-shutdown.html.