The Julius Baer Bank claimed in papers filed in U.S. District Court in San Francisco this week that a fired executive stole internal documents and illegally posted them on Wikileaks, a Web site that specializes in publishing anonymous leaks and whistle-blowers. A federal judge ordered the site's Web address blocked for posting the internal documents, which accused a bank branch of money laundering and tax-evasion schemes.
It was, by all accounts, an innovative move: when threatening Wikileaks with legal action didn't get the documents removed, the bank demanded that Dynadot, the domain-name registrar, block traffic to wikileaks.org. Curious Web surfers were, as a result, not only rendered unable to access the Julius Baer documents, but everything else posted on Wikileaks, as well. (Of course, a bevy of mirror sites and alternative Web addresses--including the original numeric Internet protocol address for Wikileaks—remained available, and began rapidly multiplying after the judge's order came down.)
Laywers for both Dynadot and the Julius Baer bank declined to comment on the case. In a statement on one of its mirror sites, Wikileaks responded: "When the transparency group Wikileaks was censored in China last year, no one was too surprised. After all, the Chinese government also censors the Paris-based Reporters Sans Frontiers and New York Based Human Rights Watch ... But on Friday the 15th, February 2008, in the home of the free and the land of the brave, and a constitution which states 'Congress shall make no law... abridging the freedom of speech, or of the press,' the Wikileaks.org press was shutdown." The court has scheduled a hearing on the injunction for Feb. 29.
Dan Tynan, who writes the Gadget Freak column for PC World magazine and maintains the insidery Robert X. Cringely blog Notes From the Field for InfoWorld, noted yesterday that "the bank's solution is so mind-bogglingly stupid, you have to wonder if these guys need help getting their pants on each morning." Tynan, who also writes the Our Digital Life column for US Airways Magazine, spoke with NEWSWEEK's Brian Braiker about the Wikileaks imbroglio and what he expects to happen next. Excerpts:
NEWSWEEK: My understanding is that a judge ordered the registrar to disable the Wikileaks.org domain. Was he overreaching?
Dan Tynan: Absolutely. In many ways, he was overreaching and underreaching at the same time, actually.
He was overreaching because he ordered the site shut down when you're really only talking about a handful of documents out of more than a million. He was underreaching because all he did was turn off the domain name Wikileaks.org. He didn't turn off the Web site. Say you're operating an illegal gambling ring out of your living room. Now, to punish you I'm going to take your number out of the phone book. The number still exists. And the Wikileaks Internet protocol still exists. Not only that, but Wikileaks operates mirror sites in several countries, all of which were completely unaffected.
It's funny that you mention that because Wikileaks is based outside the United States. Both plaintiffs also reside outside the U.S. The company Wikileaks registered its domain name with is the only American operator in this case. Does the judge even have jurisdiction?
Probably not. I think they went after the registrar because it's based in San Mateo, Calif., and they could find them. [The people who run Wikileaks] are all very well hidden. They are anonymous, they use servers in Sweden used by the same guys who operate Pirate Bay—which is notoriously used by people to swap movies and music. It's call bulletproof hosting and it's typically used by spammers and people on the dark side. These people are using it for good. What the Julius Baer Bank did was go for the lowest hanging fruit. And they shot themselves in the foot by doing it.
Because now everybody's heard about Wikileaks?
Talk about free publicity. I had never heard about Wikileaks before and now, frankly, I'm glad I did. Not only did this publicize the existence of Wikileaks, but they publicized the fact that this bank is [allegedly] helping people evade taxes and launder money. Even if that's not true, everyone thinks it is because of the coverage the story has gotten. It's classically stupid.
Did Dynadot fold?
Yeah. They fell over.
What should they have done?
They didn't really have too many choices, I don't think. If you look at any legal agreement with any [Internet service provider], if you read the fine print it says we will keep your information confidential unless we get a court order, in which case you're toast. There are few cases of people resisting that. You've had people like the [Recording Industry Association of America] going on fishing expeditions. The RIAA asked Verizon to give them lists, saying we want everyone's information at certain IP addresses [suspected of harboring pirated music. Verizon declined. Over all, though, you're kind of stuck if you're Dynadot.
Is that RIAA case the closest parallel?
The other parallel that comes to mind is demanding information from journalists and jailing journalists for not revealing sources. Another is Apple suing sites for leaking confidential information. What Apple is trying to do is find out the names of the sources of leaked information, though. These guys are a little different. Julius Baer Bank actually claims to know the name of the employee that posted these files. What they're trying to do is have them taken down. What they've done is permanently enshrined them on the Internet.
Because of all the mirror sites that have popped up?
It's the Streisand Effect. Barbara Streisand sued to get some satellite photos of her house removed from the Web. What that ended up doing is that people downloaded the pictures and posted them elsewhere, making it impossible to find and take them all down.
You don't sound too surprised by all the bloggy furor that has erupted.
One of the things I mentioned in my blog is that at first blush I was outraged. My second response was "what a great story." It has all the elements of a big evil corporation versus a plucky upstart trying to do good.
Does a case like this have the makings of something that could end up before the Supreme Court?
There is another hearing on the 29th of February. My guess is that it will not get that far. I would hope that the folks at this bank have learned their lesson. They've blown it, and they may just want to back off. They can't do anything now. They can't remove the files. All they can do is hope people forget about them, and the best way for people to forget about them is to drop the case.
We've recently seen the Church of Scientology threaten Web sites for posting internal documents online. Is there a trend toward clamping down on content online? Or, as we're seeing with all these little sites hosting the Julius Baer documents, does the Web simply make it almost too easy to distribute content?
Both. With the Scientology thing, it was posted and pulled by major corporations. [The Web site] Gawker[.com] decided it was newsworthy and stuck with it. So the smaller guys are hoping to hide under the cover of "there's ten thousand of us; if they find me there's still 9,999 of us." There's two movements: defiant copyright holders attempting to assert more control—like when we saw Viacom sue YouTube for $1 billion—versus a million ants scurring around, each carrying a crumb. You can't step on all of them. If Pirate Bay is taken down, someone else will take their place.
Sounds like both a good thing and a bad thing.
It can be positive or negative. I'm happy to have government secrets posted on the Web. But I'm not so sure I am happy to have my own. There are some things that are for the public good. The question is: who decides?