Close of Wikileaks website raises free speech concerns

Internet activists this week gave a Swiss bank and a San Francisco judge a powerful demonstration of the "Streisand Effect."

That's Internet jargon for any effort to suppress online information that backfires by drawing much wider publicity.

In this case, the Julius Baer Bank sought an injunction against Wikileaks, a website that anonymously publishes whistleblower documents, for posting papers purporting to show money laundering and tax evasion schemes at the bank's Cayman Islands branch. A federal district judge late last week took the unusual step of shutting down the entire site instead of removing just the bank's documents.

What followed was an explosion of interest in the relatively obscure website, with many online activists helping to redirect curious eyes to alternative sites where the content had been reinstated.

The Wikileaks case points to the difficulty of enforcing national norms on a global, decentralized Internet. Having weathered the first ruling, it's now unclear if Wikileaks's elusive representatives will even bother to mount a defense at the next court hearing.

"I think we are seeing the limits of a jurisdiction-based judicial system as it faces a relatively borderless Internet," says David Ardia, director of the Citizen Media Law Project, a Harvard-linked group advocating for free speech.

The court orders are stunningly broad, he says, and suggest a lack of seriousness about the First Amendment. Rather than addressing just the handful of bank documents brought up by the case, Judge Jeffrey White tried to shut down the entire Wikileaks site, which claims to have received over 1.2 million documents "from dissident communities and anonymous sources."

If this kind of order had been given in the 1971 Pentagon Papers case, says Mr. Ardia, the court would be ordering the Teamsters to park their trucks and permanently refuse to deliver any copies of The New York Times.

The decision was taken without Wikileaks representatives at the hearing, perhaps because Wikileaks failed to give the bank contact information to serve papers. The bank tracked down Dynadot, the California-based company that registered the site's domain name, and which was ordered by the judge to disable the Web address.

The judge may have taken a stronger stance against Dynadot because Wikileaks's proprietors weren't present, suggests Steven Aftergood, head of the Project on Government Secrecy in Washington.

Nevertheless, disabling the site was a "disproportionate response," that has heightened free speech concerns, he says. First Amendment law carves out boundaries for personal privacy, and the court could have used that to target just the confidential banking records.

But Wikileaks also seems to have an "absolutist" stance on free speech, says Aftergood. "Apparently censorship [to them] means any restriction on disclosure of information regardless of the laws of any particular nation." That stance may lock them into a position of defiance, he notes.

Efforts to contact Wikileaks failed, but in a press release, the company stated that "given the level of suppression ... [it will] step up publication of documents pertaining to illegal or unethical banking practices."

In the past, Wikileaks has posted documents on US policy at Gauntánamo and in Iraq.

When contacted, Bank Julius Baers spokesman Martin Somogyi emphasized that the bank brought the suit on defamation grounds, not protection of trade secrets.

The Wikileaks case is part of a larger cat-and-mouse game being played between file-sharing sites and dissidents on the one hand, and corporations and governments on the other. As Napster has shown, lawsuits have their effect, but "I don't know that the end result was any different," says Ben Gross, an expert at the University of Illinois at Urbana-Champaign.

"Essentially things are redesigned in reaction to censorship," he says.