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Wikileaks case due back in court

An effort at damage control has snowballed into a public relations disaster for a Swiss bank seeking to crack down on a renegade Web site for posting classified information about some of its wealthy clients.
/ Source: The Associated Press

An effort at damage control has snowballed into a public relations disaster for a Swiss bank seeking to crack down on a renegade Web site for posting classified information about some of its wealthy clients.

Documents from Bank Julius Baer containing information about several bank clients, including San Diego venture capitalist Jonathan Lampitt, were posted last month on The site purports to discourage unethical behavior by corporations and governments by putting leaked documents online.

The Web site claimed the documents showed tax evasion and money laundering schemes at the bank's Cayman Islands branch. Lampitt's lawyer says his client was interviewed and cleared of any wrongdoing by the FBI in 2005 after a former Bank Julius Baer employee allegedly circulated the same documents that appeared on Wikileaks.

The lawyer, Jim Ellis, said he initially received a call from a bank executive alerting him to the Wikileaks posting and saying the leak was the work of the same disgruntled former employee. Ellis was assured the bank would do everything possible to remove the sensitive documents.

In federal court in San Francisco, the bank asked a judge to take down the site. Much to the outrage of free speech advocates and others, the judge did.

But instead of the information disappearing, it rocketed through cyberspace, landing on other Web sites and Wikileaks' own "mirror" sites outside the U.S. The digerati call the online phenomenon of a censorship attempt backfiring into more unwanted publicity the "Streisand effect."

Techdirt Inc. chief executive Mike Masnick coined the term on his popular technology blog after the actress Barbra Streisand's 2003 lawsuit seeking to remove satellite photos of her Malibu house. Those photos are now easily accessible, just like the bank documents.

Masnick said the bank's lawsuit demonstrates the ineffectiveness of such legal actions in the Internet age, when anyone with a computer and online connection can thumb his nose at a judge's ruling and resurrect the "banned" information elsewhere.

"It's a perfect example of the Streisand effect," Masnick said. "This was a really small thing that no one heard about and now it's everywhere and everyone's talking about it."

The case has also become the latest anti-censorship cause celebre, drawing legal filings from the ACLU, the Electronic Frontier Foundation and several media organizations, including The Associated Press. Those arguments will be heard Friday when the bank presses on with its efforts to have Wikileaks permanently barred from posting the documents.

The legendary Swiss bank has a lot at stake. It has catered to the world's super wealthy for more than 100 years with guarantees of discretion and privacy that are the bedrocks of the Swiss banking system.

"It's a good bank," said Ellis, who said Lampitt has nothing to hide and abides by all the country's tax laws. "But we'll see. My client may get tired of this."

The bank says its lawsuit against Wikileaks and the San Mateo-based company Dynadot that sold the site its U.S. domain name has nothing to do with free speech and everything to do with protecting the privacy of bank customers.

"The spread of stolen private bank records, account numbers and information, tax documents and other protected consumer records, significantly harms privacy rights of every single individual in the United States and worldwide, and could have a harmful impact on confidence in the banking industry as a whole," the bank's lawyers argued in court papers filed Monday.

"The leak of confidential bank records," they said, "will likely have a devastating impact on financial institutions and the authorities' ability to combat credit and identity fraud."

U.S. District Judge Jeffrey White, who made the ruling taking down, has drawn widespread criticism for ordering the disabling of the entire site rather than issuing a narrowly tailored order to remove the bank's documents.

"Blocking access to the entire site in response to a few documents posted there completely disregards the public's right to know," said Ann Brick, an attorney for the American Civil Liberties Union.

The lawsuit and the judge's order also thrust the obscure Web site into prominence. The site claims to have been launched by Chinese dissidents and other activists who encourage the posting of leaked documents that show unethical behavior of governments and corporations. It says it has posted 1.2 million documents, including a 2003 operation manual for the U.S. prison at Guantanamo Bay, Cuba.

Wikileaks has so far not shown up in court nor has it responded to court orders for legal filings stating its position. Organization representatives have not responded to e-mail inquiries into whether they or their lawyer plan to show up for the court hearing Friday.

"If they defy the court and refuse to participate, Wikileaks will have crossed a very serious line," said Steven Aftergood, director of the Project on Government Secrecy at the Federation of American Scientists in Washington, D.C. "They are basically functioning as an anarchist entity, not a protest group."