Wikileaks: A Cutting-Edge Journalistic Tool or An Affront to Business Privacy?

I.  Introduction

          Wikileaks.org, a website dedicated to compiling leaked documents from governments and corporations, has sought to hold large-scale entities more accountable for their actions through greater transparency of information. [1]  However, by publishing sensitive information it believes to be in the public interest, coupled with the fact that the site has a completely anonymous user base, the site has aroused the ire of international governments and businesses alike. [2]  A recent lawsuit by a Swiss bank in which the bank sought (and briefly received) a permanent injunction to shut down Wikileaks highlights how much controversy the site has generated in its relatively short life span. [3]  While some critics try to paint Wikileaks as a site that engenders illegal activity and as a site that is a threat to privacy, neither claim can be properly substantiated. [4]  Though Wikileaks is controversial, most forms of speech displayed on the site are protected by the First Amendment. [5]

II.  Bank Julius Baer v. Wikileaks:  Free Speech and Business Interests Collide

          In January 2008, the Swiss bank, Bank Julius Baer (BJB), began sending cease and desist letters to Wikileaks to remove fourteen documents alleged to contain sensitive information about personal transactions of bank customers. [6]  After receiving no response to those letters, in early February BJB chose to file suit against Wikileaks and its webhost Dynadot in the United States District Court for the Northern District of California. [7]  Most directly, BJB sought injunctive relief from the court to force Wikileaks and Dynadot to remove the documents. [8]  Interestingly, there is strong agreement among commentators and Wikileaks contributors that BJB intensely desired to suppress the documents because they exposed “asset hiding, money laundering and tax evasion” by bank clients. [9]

          Both the Freedom of Information Act (FOIA) and United States Supreme Court jurisprudence liberate the vast majority of governmental documents or documents deemed to be “in the area of political discourse.” [10]  But with regard to business documents, the landscape is invariably more complicated.  Privacy protections exist in every state for various kinds of sensitive corporate data, including trade secrets and personal bank account information. [11]  The remedies under these kinds of statutes are directly limited to the offending data, requiring either the removal of the data from the public sphere or tort liability for the damages caused by that information going public (or most likely, both). [12]

          Had the court chosen to grant only the relief explicitly declared by BJB, this case would have been simple and unremarkable:  the documents did contain sensitive data about clients (including personal identification and account numbers) that governing California substantive laws and regulations protect as part of the private sphere, and thus removal of the documents from the site would have been a wholly appropriate remedy. [13]

III.  The Court’s Issuance of a Permanent Injunction

          Instead, the court took a fantastically drastic step at the suggestion of a conclusory footnote remark in a BJB memorandum. [14]  The footnote declared that because Wikileaks operated anonymously, “it [is] necessary to issue injunctive relief requiring Dynadot to remove the DNS records to prevent the website from displaying the [Bank Julius Baer] Property.” [15]  In essence, this footnote asserted that shutting the entire domain down was “necessary” to prevent the anonymous site from displaying the small amount of offending data, without offering any supporting arguments for that outlandish claim.  Any person with minimal understanding of the internet could easily recognize that forcing a domain to shut down to prevent the viewing of specific, illegal content is by no means necessary; a court order demanding the takedown of those particular files would have completely prevented the harm to BJB without censoring the rest of the site’s First Amendment-protected material.

          Quite simply, there is no plausible interpretation of current copyright and First Amendment jurisprudence that can substantiate the court’s decision to shut down the domain as a whole. [16]  Furthermore, it seems extraordinarily strange that the court would grant such a drastic remedy when BJB did not even pray for it directly--an unsupported conclusion hidden in a footnote is generally not sufficient to state a claim for relief.

          Both fortunately and surprisingly--and perhaps in large part due to the overwhelming influx of supporting legal arguments from civil liberties groups like the Electronic Frontier Foundation and the American Civil Liberties Union and the extensive press coverage for this high profile case--the federal judge decided to overturn his grant of the permanent injunction less than two weeks after initially granting it. [17]  Citing, among other newfound and profound gaps in BJB’s legal arguments, the fact that such a drastic remedy was unnecessary to prevent the harm to BJB, the judge completely rescinded the order and allowed for Wikileaks to again utilize its domain name. [18]

          Unsurprisingly, BJB suffered significant damage to its reputation in the course of this suit. [19]  What is perhaps a bit ironic is that by trying hard to suppress the information about the wrongdoing of its clients, it likely drew significantly more negative attention to itself than it would have had it allowed the files to remain online or had it only requested the court to take the files down without interfering with the whole domain. [20]  BJB voluntarily dropped the case on March 5, but not before registering a twenty percent fall in the value of its stock as compared to January--before it initiated any of the proceedings. [21]

IV.  Conclusion

          Perhaps from the standpoint of pure business interests, Wikileaks is an unfortunate necessity--it does businesses very little direct, tangible good to know that while many documents are protected by various business privacy laws, some sensitive information could legally be displayed to the public at large.  Even worse, Bank Julius Baer has proven that while having leaked documents posted online might be damaging to corporate reputation, gaining a reputation for suppressing free speech can be even more injurious.  Wikileaks’s anonymous posting of documents is, in general, a form of speech protected by the First Amendment, though that freedom is appropriately limited by a variety of privacy laws protecting businesses.  Substantive provisions in both intellectual property and corporate law protect the most sensitive kinds of data, and the rest are potentially free for public scrutiny.  But even where such laws do apply, a business cannot simply hope to squash the whole site in order to remove a few offending files--or as a lawyer for Wikileaks quipped, "The Supreme Court has warned against 'burning down the house to roast the pig.'" [22]

          Wikileaks has the potential to be an extraordinarily powerful, journalistic tool, and its existence could actually be a powerful positive for businesses in a more indirect way:  in this recent era where white collar scandals like Enron and WorldCom have stormed the media scene, the existence of a tool like Wikileaks that endeavors for greater transparency could inspire businesses to be more ethical--or at the very least more worried about the likelihood that their wrongdoing could be discovered.

Sources

[1] Tracy Samantha Schmidt,  A Wiki for Whistle-Blowers, Time, Jan. 22, 2007,  available at http://www.time.com/time/nation/article/0,8599,1581189,00.html?cnn=yes.

[2] J. Aaron Landau, Vying For Control of the Internet: Is Wikileaks Unstoppable?,  theLegality, Feb. 27, 2008, available at http://www.thelegality.com/archives/28.

[3] Matt Zimmerman, EFF, ACLU Move to Intervene in Wikileaks Case, Feb. 27, 2008, available at http://www.eff.org/press/archives/2008/02/26-0.

[4] Bank Julius Baer v. Wikileaks, Case No. CV08-0824, Plaintiff's Memorandum of Points and Authorities in Support of Application for TRO and OSC Re Preliminary Injunction, Feb. 7, 2008, available at http://docs.justia.com/cases/federal/district-courts/california/candce/3:2008cv00824/200125/6/.

[5] J. Aaron Landau, Vying For Control of the Internet: Is Wikileaks Unstoppable?,  theLegality, Feb. 27, 2008, available at http://www.thelegality.com/archives/28.

[6] Id.

[7] Matt Zimmerman, EFF, ACLU Move to Intervene in Wikileaks Case, Feb. 27, 2008, available at http://www.eff.org/press/archives/2008/02/26-0.

[8] Bank Julius Baer v. Wikileaks, Complaint Against Wikileaks, Feb. 6, 2008, available at http://docs.justia.com/cases/federal/district-courts/california/candce/3:2008cv00824/200125/1/.

[9] J. Aaron Landau, Vying For Control of the Internet: Is Wikileaks Unstoppable?,  theLegality, Feb. 27, 2008, available at http://www.thelegality.com/archives/28.

[10] Scott Bradner, Wikileaks: a site for exposure, LinuxWorld, Jan. 18, 2007, available at http://www.linuxworld.com.au/index.php/id;1264532314;fp;2;fpid;1.

[11] Gene Quinn, Trade Secrets, IPWatchdog.com, available at http://www.ipwatchdog.com/tradesecret/.

[12] Id.

[13] J. Aaron Landau, Vying For Control of the Internet: Is Wikileaks Unstoppable?,  theLegality, Feb. 27, 2008, available at http://www.thelegality.com/archives/28.

[14] Bank Julius Baer v. Wikileaks, Case No. CV08-0824, Plaintiff's Memorandum of Points and Authorities in Support of Application for TRO and OSC Re Preliminary Injunction, Feb. 7, 2008, available at http://docs.justia.com/cases/federal/district-courts/california/candce/3:2008cv00824/200125/6/.

[15] Id.

[16] J. Aaron Landau, Vying For Control of the Internet: Is Wikileaks Unstoppable?,  theLegality, Feb. 27, 2008, available at http://www.thelegality.com/archives/28.

[17] Thomas Claburn, Swiss Bank Abandons Lawsuit Against Wikileaks, Information Week, March 6, 2008, available at http://www.informationweek.com/management/showArticle.jhtml?articleID=206902154; John Timmer, Heavy legal guns ask judge to reverse Wikileaks shutdown, ars technica, Feb. 27, 2008, available at http://arstechnica.com/news.ars/post/20080227-heavy-legal-guns-ask-judge-to-reverse-wikileaks-shutdown.html.

[18] Thomas Claburn, Swiss Bank Abandons Lawsuit Against Wikileaks, Information Week, March 6, 2008, available at http://www.informationweek.com/management/showArticle.jhtml?articleID=206902154.

[19] Id.

[20] Id.

[21] Id.

[22] John Timmer, Heavy legal guns ask judge to reverse Wikileaks shutdown, ars technica, Feb. 27, 2008, available at http://arstechnica.com/news.ars/post/20080227-heavy-legal-guns-ask-judge-to-reverse-wikileaks-shutdown.html.