The cast of characters in Julius Baer v. WikiLeaks became a lot
more crowded last Tuesday, as a coalition of civil rights groups filed motions
to intervene on WikiLeaks’ behalf in time for a renewal hearing on the District
Court’s injunction
against the WikiLeaks.org domain name.
With the added support, WikiLeaks now has some heavy guns
backing it: intervenors include the Electronic Frontier Foundation, the Northern
California ACLU, and the Project on Government Oversight, all of whom express
grave concerns over the injunction’s first amendment ramifications.
“The court’s order shuts down and locks up the domain name
Wikileaks.org permanently, effectively interfering with the public’s ability to
access the materials on the website as easily as possible,” said ACLU attorney
Aden Fine. “The public has a right to receive information and ideas, especially
ones concerning the public interest. This injunction ignores that vital
First Amendment principle.”
Julius Baer, owner of the private documents in WikiLeaks’
possession, denies
allegations that it is trying to step on the public’s first amendment rights. “This
matter has nothing whatsoever to do with censorship or the First Amendment,”
read a press release issued yesterday. “Instead, Julius Baer’s sole objective has
always been limited to the removal of these private and legally protected
documents from the website.”
Many feel that the court order to disable WikiLeaks.org
domain was rubber-stamped by the San Franscisco district court; WikiLeaks contends
the ex parte hearing that produced
the order was conducted hastily and that the injunction itself was accepted by
the district judge without any additional amendments. Given that Julius Baer v.
WikiLeaks is considered to be a unique, landmark case, it is widely believed
that leaving the injunction intact could set a dangerous precedent.
“DynaDot's private agreement to disable access to its
customer's domain name – and the court's endorsement of that agreement – raise (sic)
serious First Amendment concerns,” said EFF Senior Attorney Matt Zimmerman. “Julius
Baer's private dispute regarding a former employee's alleged violation of a
confidentiality agreement does not warrant this attempt to block access to all
material hosted on WikiLeaks … the First Amendment rights of readers who have a
legitimate interest in the materials posted on the website simply cannot be
treated as acceptable collateral damage to the bank's claims.”
Meanwhile, a coalition of media and public rights interests
filed friend-of-the-court briefings last Tuesday, urging
the judge to reconsider his order. The group consisted of lawyers for the
EFF, ACLU, Public Citizen, and “several news organizations,” which
Ars Tecnica reports as the Los Angeles Times, the Associated Press, the Hearst Corporation,
Scripps, the Reporters Committee for Freedom of the Press and the Citizen
Media Law Project.
The group’s attorneys claim that the authority for their amicus curiae lies in the 1971 Pentagon Papers
decision, which upheld the strength of the First Amendment right to free
speech, even when challenged by matters of national security. “The [First]
Amendment prohibits prior restraints in nearly every circumstance, even where
national security may be at risk and even when the source unlawfully obtained
the documents,” said attorneys Thomas Burke and colleagues.
“If Wikileaks is shut down, the ability of Public Citizen”
to access whistle-blowers’ information “will be significantly impaired,” said Peter Lurie, who uses WikiLeaks heavily in his work for Public
Citizen’s health policy wing.
“This is a case that presents a conflict between an
individual's right of privacy versus the press' ability to publish private
information about private individuals,” said William Briggs, who represents
Julius Baer. “I think the individual privacy rights outweigh the right of the
press to report that information because of reasons of identity theft. If
financial industry customers do not think their information is protected, those
institutions could go out of business.”
