Wednesday, February 20, 2008

Cayman Islands bank gets Wikileaks taken offline

As reported in Wired's blog:

Wikileaks, the whistleblower site that recently leaked documents related to prisons in Iraq and Guantanamo Bay, was taken offline last week by its U.S. host after posting documents that implicate a Cayman Islands bank in money laundering and tax evasion activities.

In a pretty extraordinary ex-parte move, the Julius Baer Bank and Trust got Dynadot, the U.S. hosting company and domain registrar for Wikileaks, to agree not only to take down the Wikileaks site but also to "lock the domain name to prevent transfer of the domain name to a different domain registrar." A judge in the U.S. District Court for Northern California signed off on the stipulation between the two parties last week without giving Wikileaks a chance to address the issue in court.

The Julius Baer Bank, a Swiss bank with a division in the Cayman Islands, took issue with documents that were published on Wikileaks by an unidentified whistleblower, whom the bank claims is the former vice president of its Cayman Islands operation, Rudolf Elmer. The documents purport to provide evidence that the Cayman Islands bank helps customers hide assets and wash funds.

After failing to convince Wikileaks to take down the documents, the bank went after its U.S. hosting service, which responded by agreeing not only to remove the Wikileaks account from Dyndadot's server but also to help prevent Wikileaks from moving its site to a different host.

Wikileaks is actually still online, even though its domain has been taken out of its control in this highly unusual and inappropriate move by the courts. Bank Julius Baer and its attorneys are making a huge mistake that is now going to drive far more attention to the documents in question than they would have received otherwise.

Wikileaks publishes the correspondence between the organization and the bank's attorneys, in which they refuse to identify their client or the specific documents that they take issue with.

Wikileaks board member Julian Assange (author of the security tool "strobe" and technical advisor and researcher for the excellent book Underground: Tales of Hacking, Madness, and Obsession on the Electronic Frontier, by Suelette Dreyfus), has been quoted saying that Wikileaks will continue to publish:
"The order is clearly unconstitutional and exceeds its jurisdiction," Wikileaks spokesman Julian Assange said in the e-mail statement issued from Paris on Monday. "Wikileaks will keep on publishing. In fact, given the level of suppression involved in this case, Wikileaks will step up publication of documents pertaining to illegal or unethical banking practices."
Wikileaks was set up primarily to allow the leaking and publishing of documents from non-Western authoritarian regimes, but it has gotten the most press for its earlier leak of the Guanatanomo Bay operating manual and now for this report of a Cayman Islands/Swiss bank's activities.

In my opinion, Wikileaks is subject to abuse--just like the Internet in general, as well as newspapers and other forms of publication--but that organizations which attempt to use trade secret and copyright law as a tool to conceal illegal or immoral activity should not be permitted to succeed. This particular case appears to be somewhat complex and based on a particular whistleblower's account, and if it only involves tax avoidance (as opposed to evasion), then it doesn't involve the violation of any laws. It is, however, clearly inappropriate for the entire site to be shut down just because of a few specific documents from one case--that would be like shutting down Wikipedia because of the content in one set of articles, or shutting down Blogger because of material posted on one blog. That's the kind of censorship we have seen from some authoritarian regimes in response to critical material, but it's not how the law should work in the United States.

UPDATE (March 4, 2008): Judge White wisely reversed his decision and is back at its own domain name.

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