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Internet Swiss Bank Silences WikiLeaks.org
Tom Corelis (Blog) - February 19, 2008 11:33 AM
Print E-mail del.icio.us 24 comment(s) - last by TomCorelis.. on Feb 20 at 2:52 PM
Court issues ex parte order to disable WikiLeaks.org domain, defendants given only a few hours' notice via e-mail

WikiLeaks, an “uncensorable” site that specializes in distributing sensitive document leaks and analyses, lost control of its primary WikiLeaks.org domain after a swift legal attack from Bank Julius Baer.

According to a WikiLeaks report hosted on one of the site’s many mirrors, attorneys representing Bank Julius Baer held a surprise hearing to force the site’s host, Dynadot, to delete the WikiLeaks.org domain name and prevent its transfer to another registrar.

The move followed an unsuccessful attempt to get WikiLeaks to remove hundreds of leaked documents that implicated the bank in money laundering and tax evasion activities.

According to a posted e-mail transcript, an attorney contacted WikiLeaks mid-January with a cryptic request demanding the site’s legal contacts, making no mention of the documents in question. When WikiLeaks asked the firm that sent the request for further information, discussions took a confrontational tone. “You have no legal right to demand advance knowledge of the name of our client and the documents at issue,” wrote Lavely & Singer attorney Evan Spiegel, “your site promotes, encourages and facilitates the publication and distribution of stolen, illegally and/or tortiously obtained corporate records.”

“You act at your own peril. Govern yourselves accordingly,” wrote Spiegel.

Lavely & Singer’s client, and the nature of its request, was not revealed until a brief phone call on January 22 between Spiegel and WikiLeaks’ pre-ligitation attorney, Julie Turner. Following that, WikiLeaks said it heard nothing further from Bank Julius Baer or its attorneys, until the surprise ex parte hearing last Friday.

A WikiLeaks press release, crafted hastily “due to time constraints,” says that it was given only a few hours’ notice of the hearing, and that it received that notice via e-mail. When Turner showed up at the hearing “in a personal capacity,” she was asked to leave the court room before proceedings began.

WikiLeaks said the injunction was written by Bank Julius Baer’s lawyers and accepted by a California district court judge without additional amendments.

Turner said she was surprised at the unusual legal request: “It’s like saying that Time magazine published one page of sensitive material so [someone can] seize the entire magazine and put a lock on their presses,” she said.

A representative for Bank Julius Baer declined to comment, citing the pending legal proceedings.

Despite the takedown of the site’s flagship domain, and a coincidental fire that knocked the site’s Swedish mirror – as well as a number of controversial piracy websites – offline, it remains accessible under a multitude of aliases, including www.WikiLeaks.cx and www.WikiLeaks.la.

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this doesnt seem right
By omnicronx on 2/19/2008 12:46:53 PM , Rating: 2
quote:
A WikiLeaks press release, crafted hastily “due to time constraints,” says that it was given only a few hours’ notice of the hearing, and that it received that notice via e-mail. When Turner showed up at the hearing “in a personal capacity,” she was asked to leave the court room before proceedings began.
How is this legal? How can they give you only a few hours, and how can they ask you to leave the courtroom>?




RE: this doesnt seem right
By sweetsauce on 2/19/2008 1:08:02 PM , Rating: 5
Without getting too political, its pretty obvious how something like this can happen. Just look to our leadership, they set the precedent for it.


RE: this doesnt seem right
By sprockkets on 2/19/2008 1:38:51 PM , Rating: 1
Yeah, read all the times Bush vetoed laws protecting whistle blowers. Jerkoffs.


RE: this doesnt seem right
By fic2 on 2/19/2008 1:14:52 PM , Rating: 4
I was wondering the same thing. And, AFAIK, email is not really an approved method of delivering legal notice to a defendent.

I am suprised that a judge in CA would go along with this "legal" proceeding. Usually they are a lot more liberal. Of course, they are usually just this whacked out of their minds.


RE: this doesnt seem right
By omnicronx on 2/19/2008 1:20:14 PM , Rating: 2
Which is why i do not see this sticking. I would also like to know who is going to ask this judge some serious questions.


RE: this doesnt seem right
By TomCorelis (blog) on 2/19/2008 1:23:13 PM , Rating: 2
The only explanation I can come up with is that ex parte proceedings are frequently done in secret, so that the other party can't react in a way that obfuscates the legal case.

If that's why WikiLeaks received such short notice, then they was lucky to have received any notice at all.


RE: this doesnt seem right
By ElFenix on 2/19/2008 1:49:20 PM , Rating: 2
yes, ex parte stuff is done so that the defendant doesn't start liquidating assets or whatever else prior to the hearing. though this doesn't seem like something that would need this much secrecy.

in my experience judges usually phone the other party from the courtroom when an ex parte restraining order is about to be entered. but that is with employment law cases that don't amount to much.

this seems a very harsh restraining order. i'm guessing the judge doesn't understand that s/he could write an order against just the documents in question and not the whole site.

also weird, in my experience, that the judge didn't edit the order any.

finally, i really appreciate when lawyers don't know the difference between 'tortuously' and 'tortiously.' or maybe it's the blogger's spell check that did it.


RE: this doesnt seem right
By TomCorelis (blog) on 2/19/2008 3:11:56 PM , Rating: 2
Wow, good eye. The original quote had 'tortiously.' Consider it fixed.


By KristopherKubicki (blog) on 2/19/2008 4:06:08 PM , Rating: 2
Hmm -- sorry Tom. I left it the other way + [sic] in the original edit.


RE: this doesnt seem right
By eye smite on 2/19/2008 1:21:12 PM , Rating: 5
Hehe, this is the state that is taking over peoples air conditioner controls and you ask that question? lol
I'm razzing you a bit, but I'm sure someone took advantage of the system and expedited matters. BTW those links don't seem to be working ATM. I think they'll do more harm than good. I'm guessing not many knew of the site or what was in it about this bank, now that it's in the news everyone will be trying to hit that site.


RE: this doesnt seem right
By Rugar on 2/19/2008 1:26:18 PM , Rating: 3
An ex parte hearing is allowable when there are urgent matters that may result in irrevocable damage to the requesting party if normal due process rules (read: time) were followed. In this case, it appears that the attorneys for Bank Julius Baer successfully argued before the judge that the documents in question would cause such harm to the bank.

As for the attorney for WikiLeaks being asked to leave the court, it looks like the clue to that is to be found in the phrase “in a personal capacity". It sounds like Ms. Turner was not the attorney of record (or had no documentation) for the defendant and was therefore asked to leave the court.

Is it sketchy? Sure. And to be honest, I'm surprised that WikiLeaks wasn't also slapped with a gag-order preventing discussion of the ex parte proceedings until the litigation was completed.


RE: this doesnt seem right
By TomCorelis (blog) on 2/19/2008 3:16:50 PM , Rating: 2
You are correct. The press release takes great pains to assure the reader that Ms. Turner is only the pre-litigation attorney, and that she is not participating in the actual case.


RE: this doesnt seem right
By Alexstarfire on 2/19/2008 3:32:51 PM , Rating: 2
Of course it would cause harm to the bank. You think they want to be implicated with money laundering? Course not. I'm not sure exactly what all is on WikiLeaks, but if it's things like this that expose criminal activities of companies then I don't see how the judge could do what he/she did. I mean, it's not like the spilled the secret recipe to Coca-Cola.

I do see why it shouldn't be allowed though, depending on the means uses to procure the secret documents, but when the incriminating bank is the one to press charges you can only assume that the document is real and accurate. I'm sure they just don't want to do jail time.


RE: this doesnt seem right
By Proteusza on 2/20/2008 5:49:33 AM , Rating: 2
Yeah, I dont understand it either. On the one hand, they may be copyrighted - but surely you have to apply for a copyright? You cant just claim something is sensitive and therefore needs to be protected.

What if I took a photo of myself committing a crime, and the police got hold of it? Would I be able to claim that the police unlawfully hold my photo? Come on.

I think perhaps the judge either wasnt aware of the full situation, or knew which side his bread was buttered on.


RE: this doesnt seem right
By phattyboombatty on 2/19/2008 5:46:02 PM , Rating: 4
Because this case was filed in the federal district court, all of the filings in the case are publicly available online. Wikileaks wasn't entirely accurate in its report. The bank served notice of the hearing on the temporary restraining order (TRO) on Julie Turner, who had represented Wikileaks in regards to the take-down notice sent by the bank to Wikileaks. Ms. Turner objected to the service of the notice on her, because she claimed she no longer represented Wikileaks. Meanwhile, the bank was having difficulty getting the complaint and request for TRO served on Wikileaks in the traditional fashion. The judge granted their request to use an alternative form of service--email--the day before the hearing. However, the judge did not reschedule the hearing date because he ruled that Wikileaks had actual knowledge of the lawsuit and the hearing date based on a comment made by Julie Turner to the court that Wikileaks was attempting to obtain an attorney to represent it in the litigation. The judge also ordered Julie Turner to be present at the hearing the next day. Presumably, this was because the judge wanted to clear up with Ms. Turner whether or not she was actually representing Wikileaks. At the hearing, when Ms. Turner told the judge that she did not represent Wikileaks, the judge said she could go (note that the official record does not mention that the judge forced her to go).

The order directed at Wikileaks only prohibits it from posting documents related to the bank. The order that was directed at Dynadot, which deleted the reference to Wikileaks.org was agreed to by Dynadot.

At the end of the month, there will be another hearing and Wikileaks can make its case at that time to lift the injunction.


RE: this doesnt seem right
By Rugar on 2/19/2008 9:47:49 PM , Rating: 3
Good work on looking up the case. I was way too lazy for that. Based on your reading, everything sounds perfectly reasonable to me. It's interesting how the article based on a press release gives a very different slant than does a review of the filings themselves.


The shadow of secrecy...
By sh3rules on 2/19/2008 12:29:44 PM , Rating: 4
...protects indiscriminately (both the good and the bad guys) -Deus Ex reference. How much secrecy is necessary will always be a point of contention. I for one I’m glad that sites like that exist.




RE: The shadow of secrecy...
By Spartan Niner on 2/19/2008 8:45:09 PM , Rating: 3
I'm getting a strong urge to upload such things as a torrent... and let nature take its course ;)

Down with corruption! Hurrah for the free flow of information!


is anything going to happen about this?
By Proteusza on 2/20/2008 5:45:58 AM , Rating: 2
Surely, with the evidence now freely available on wikileaks mirrors, even if the evidence itself isnt admissable in court, someone could start proceedings against this bank for their shady dealings?

I hope they get what they deserve.

Oh, when I first read the story on The Register, it mentioned that Bank Julius Baer is a Cayman Islands bank, did they get it wrong?




By TomCorelis (blog) on 2/20/2008 2:52:19 PM , Rating: 2
Honestly, we're both right. BJB is headquartered in Switzerland but the office in question, and the site of all these allegations, ran out of the Cayman Islands. The Cayman Islands office may or may not be some kind of subsidiary of the main bank.