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Update: Rights groups seek court OK to intervene in Wikileaks case

February 28, 2008 12:00 PM ET

The judge also issued a temporary restraining order that forbade Wikileaks from displaying, posting, publishing or distributing any material pertaining to the bank on any site that it directly owned or over which it had any control. The order instructed Wikileaks to ensure that all of the bank's information was removed from all Web sites it owned or controlled, to disable links to the material on such sites and to provide the court with proof that it had complied with the orders. The judge's order even enjoined everyone who read the order or received notice of it from publishing or even linking to the documents.

The rulings drew scathing criticism from privacy and civil rights groups that saw it as an unprecedented violation of First Amendment rights. Several felt the court had overreacted in ordering that the entire domain be shut down just because a relatively small number of documents it hosted were being disputed.

This week's friend-of-the-court briefs and the move to intervene by the EFF and the ACLU have been the most visible manifestations of that concern.

Matt Zimmerman, senior staff attorney at the EFF, said his organization decided to file a motion to intervene because the case raises several troubling issues. For instance, the Swiss bank's strategy of getting Dynadot to disable the Wikileaks domain and the court's endorsement of that tactic could set a dangerous precedent if allowed to stand, he said.

"The strategy of going after the registrar is an attempt in a collateral way to get at the remedy," he said. "It shouldn't be a remedy that plaintiffs think is acceptable or that the courts think is acceptable. It's overkill, to say the least," he said. It should serve as a warning to others of how vulnerable their Web presence can be if their domain registrars or service providers are unable or unwilling to stand up to legal pressure, he said.

Similarly, Julius Baer Group's attempt to block access to all materials on Wikileaks because it wanted to protect its own documents, and the court's acceding to that strategy, is unwarranted, according to Zimmerman. For one thing, he said, it violates Wikileaks' First Amendment rights. Zimmerman added that the court's action also violates the First Amendment rights of Web users who might have had a legitimate interest in reading all of the other material posted on Wikileaks.

Julius Baer today issued a statement addressing "certain misconceptions" relating to the case.

The bank said it filed suit only after a monthlong effort to "engage the operators of Wikileaks" in a dialog about the disputed documents failed. "This matter has nothing whatsoever to do with censorship or the First Amendment," the statement noted. "Instead, Julius Baer's sole objective has always been limited to the removal of these private and legally protected documents from the website."

It added that the documents in question are protected from unauthorized publication under U.S., California and foreign consumer banking privacy laws.

"It is not and has never been Julius Baer's intention to stifle anyone's right to free speech," the bank said. It further noted that the Wikileaks Web site had other documents pertaining to the bank, which it made no attempt to remove because the documents did not involve personal customer information.

A hearing on the case is scheduled for tomorrow.

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