A public outcry followed the decision of judge Jeffrey White of
the Federal District Court in San Francisco to order that the site
be taken down. Free speech advocacy groups the American Civil
Liberties Union (ACLU) and Electronic Frontier Foundation (EFF)
sought an overturning of the order.
That has now been granted, with the judge acknowledging that
forcing the site to close might run counter to the US
constitution's first amendment, which protects the right to free
speech.
Judge White refused to extend an order banning the continued
publication of the bank documents in question, saying that the ban
would raise "serious questions of prior restraint [on free speech]
and possible violations of the First Amendment".
Wikileaks calls itself a 'transparency group' and a forum for
principled leaking of documents. It is designed to host
anonymously-submitted corporate or government documents that
leakers believe the public should know about.
The site hosted documents purporting to be from Julius Baer and
seeming to show personal banking transactions that, it was claimed,
demonstrated money laundering and tax evasion by customers with
money in the Cayman Islands.
The bank claims that the documents have been doctored, that they
belong to the bank and are therefore confidential. It said their
publication violates privacy and banking laws.
The bank initially won two rulings in Judge White's court, one
stopping the posting of more material or linking to existing
material, the other ordering Wikileaks.org's domain name registrar,
Dynadot, to make the address inaccessible and to stop it being
transferred to another registrar.
He has now overturned both of his own orders.
The lawsuit will continue, but the reversal means that
Wikileaks.org can continue to publish the documents as the case
progresses.
"We're very pleased that Judge White recognised the serious
constitutional concerns raised by his earlier orders," said EFF
senior staff attorney Matt Zimmerman. "Attempting to interfere with
the operation of an entire website because you have a dispute over
some of its content is never the right approach. Disabling access
to an internet domain in an effort to prevent the world from
accessing a handful of widely-discussed documents is not only
unconstitutional, it simply won't work."
As well as his fears about whether his orders had been
constitutional, Judge White expressed doubts about whether or not
his federal court had jurisdiction over Wikileaks, and whether or
not it is even an entity that can be sued.
Federal courts can only rule in cases where one of the parties
is located in the US. A lawyer representing the owner of the domain
name wikileaks.org said that he is a resident of Kenya and a
citizen of Australia, and that in any case he did not control the
organisation.
The court identified Wikileaks.org as 'an entity of unknown
form', leading some observers to wonder if it can be sued in the
same way as a person or a company.
Judge White also said that an extension to the injunction would
not even perform the function the bank wanted, and that the
documents were now available on 'mirror' sites all over the world.
"There is evidence in the record that 'the cat is out of the bag'
and the issuance of an injunction would therefore be ineffective to
protect the professed privacy rights of the bank’s client," he
said.
