Bank Julius Baer & Co. v. Wikileaks

 

A federal judge issued a Temporary Restraining Order that barred Wikileaks, an Internet community with web sites hosted all over the world on which the public can post "leaked" documents that may expose government and corporate wrongdoing, from posting documents leaked from a private Swiss bank. The judge also issued a "permanent injunction" against the domain name registrar that both froze the domain name wikileaks.org (so that it could not be moved to a different registrar) and disabled the name so that it could not refer to anything more than a blank page. This permanent injunction, which was submitted with the consent of the domain name registrar, would if successful have prevented public access to ANY of the documents or comments on documents that appear on wikileaks.org. (In fact, the order was unsuccessful because the foreign Wikileaks sites, which carry the same information, were unaffected).

Public Citizen is concerned with the First Amendment and the issue of prior restraint, but in attacking the orders we decided to focus on some more technical issues that neither the lawyers in the case nor, apparently, the judge had noticed. Thus, earlier today, along with the California First Amendment Coalition, we filed a brief pointing out that the case did not even qualify for federal court jurisdiction because there are subjects of foreign states on both sides of the case -- the Swiss bank on one side, and Wikileaks, many of whose members are abroad, on the other side. In addition, we point out that the main cause of action on which the bank relied, section 17200 of the California Business and Professions Code, applies only to unfair or unlawful "business practices" and hence does not apply to completely non-commercial web sites like Wikileaks.

The brief, as well as three affidavits explaining the importance of access to leaked documents and the stake that Public Citizen and the California First Amendment Coalition have in the stake (thus allowing them to intervene) appear below.