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WikiLeaks on Friday won its domain name back but still faces a potentially lengthy litigation as the court wrestles with issues of liability and restraint as applied to collaborative transnational publishing.
The federal judge who earlier this month ordered the California domain registrar Dynadot to disassociate the domain name records linking Wikileaks.org with the IP address of its server, (126.96.36.199), dissolved his injunction and allowed the litigation against the community-driven document sharing site to proceed.
The plaintiff in the case, Bank Julius Baer (BJB), a Swiss bank with branches around the world, won the injunction over two weeks ago as part of its legal offensive to prevent Wikileaks.org from distributing what it claims are confidential documents containing private information on bank clients.
The aggressive legal tactics of Lavely & Singer, the firm representing the bank, have failed to remove the disputed documents from the Internet. But they have drawn criticism for causing collateral damage.
The latest casualty is Daniel Matthews, a mathematics graduate student at Stanford and human rights advocate who received a summons from the Swiss bank's attorneys naming him as an officer of WikiLeaks.
In a court document filed on Thursday, Matthews said that although he has contributed to WikiLeaks -- wikis being Web sites to which anyone can contribute -- he has no involvement with the management of the site.
Matthews declared that he said as much in an e-mail to the bank's legal team, only to be told, "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 ..."
In reply, Matthews said he explained that he moderates a Facebook group that discusses WikiLeaks and had no management role in WikiLeaks. "I am not, and never have been, an officer of WikiLeaks, and I request you not to represent that I am."
Nonetheless, he was compelled to retain an attorney to defend him in court.
"I don't want to use the world abusive but the approach that they took was extremely aggressive," said Joshua Koltun, an attorney who is representing Matthews pro bono. "From my client's perspective, that was cause for concern. I think that this kind of thing is just not supposed to happen this way. They took a 'shoot first, ask questions later' approach, which in this context didn't do well."
At the same time, Koltun expressed sympathy for the problem facing BJB's lawyers: How to serve legal documents to such an amorphous entity. "There is no entity called WikiLeaks, not in the sense that they contend," he said.
Julie Turner, an attorney who represented WikiLeaks as pre-litigation counsel, is less understanding that Matthews was compelled to defend himself. "That's like serving your neighbor just because they're there," she said, noting that there are rules that dictate how to serve legal papers to unknown parties.
Koltun reserved his criticism for WikiLeaks' domain registrar. Dynadot, he said, "didn't want to fight something that might lead to a costly dispute. They basically rolled over." The result of this sort of behavior, he said, is that those involved in community-run Web sites, like Wikipedia.org, might be more reluctant to participate for fear of being held liable for something on the site.
Matt Zimmerman, senior staff attorney for the Electronic Frontier Foundation, concurs that this represents a real issue. He said it was disappointing to see that Dynadot, despite being a small ISP, chose not to stand up for the rights of its customers.
The intent of the order was to prevent WikiLeaks from distributing documents to which BJB lays claim (a separate order directing WikiLeaks to remove the disputed documents also was issued). But blocking the Wikileaks.org domain name hasn't made the documents inaccessible; it has, however, raised the ire of free speech advocacy and media groups, who have condemned the disabling of the Wikileaks.org domain name as a violation of the First Amendment.
More than a dozen advocacy and media organizations including The American Civil Liberties Union, The American Society of Newspaper Editors, and The Project on Government Oversight filed legal briefs in support of WikiLeaks.
On Thursday, BJB defended its actions. The bank issued a statement insisting that it never intended to hinder anyone's right to free speech. It said it has made no attempt to remove defamatory material on the WikiLeaks site that refers to BJB but does not include sensitive personal information of the bank's clients.
"The documents in question are protected and prohibited from unauthorized publication under U.S., California, and foreign consumer banking and privacy protection laws," BJB said. "The posting of confidential bank records by anonymous sources significantly harms the privacy rights of all individuals."
In a counter-statement issued on Thursday, WikiLeaks said, "This is a lie. Baer's requests to the court to [shut down WikiLeaks] 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'!"
"The bank's argument that what they are doing does not implicate the First Amendment is outrageous," said Turner. "The bank seems to be taking any position it can to be able hide documents that are potentially embarrassing, without regard to the law."
WikiLeaks disputes BJB's characterization of the documents in question as bank records. "The documents are nearly all Microsoft Word files setting up trust arrangements used as anonymizing shell structures," WikiLeaks said in its statement. "In its court filings, Baer claims to have been aware of the documents release since 2003 and the Swiss media had the documents in 2005. The only relevance these documents have now is that they expose the bank's ultra-rich clients suspiciously funneling money through Cayman Islands trusts nearly a decade ago."
The WikiLeaks statement says that it had been skeptical about the authenticity of the documents until the bank took legal action. "Baer, in attempting to shoot the messenger, has only succeeded, spectacularly, in shooting itself," said WikiLeaks.
Indeed, the attention generated by the case seems to have put BJB at a disadvantage. According to Zimmerman, who attended Friday's hearing, Judge White seemed to recognize that technology may have outstripped the court's ability to grant relief in this case and questioned whether an injunction could be effective. "[Judge White] specifically said new technology raises serious concerns for the courts and sometimes constitutional jurisprudence doesn't walk in lockstep with advancing technology," he said.