Why are lawyers so greedy in their legal claims ? Words like "all" or "every" should not be allowed in legal language, without explicit caveats and qualifications, limiting their scope.
Judge Jeffery S.White's approval of the first Restraining Order against WikiLeakS and the Domain Name Registrar Dynadot LLC was bad enough.
His second one, a Proposed Amended Temporary Restraining Order, is even wider in scope and is remarkable for several features, which seem to betray an unfamiliarity and incompetence with the Internet, which is astonishing for someone who works in the internet savvy city of San Francisco.
Hat tip to the Law Librarian Blog Permanent Injunction issued against Wikileaks:
The Citizen Media Law Project has a 10 page .pdf copy of the Second Order made by the judge Hon. Jeffrey S. White against Wikileaks:
Proposed Amended Temporary Restraining Order and Order To Show Cause re. Preliminary Injunction 4405-2\PLE\PROP-ORD-TRO 021408 CV08-0824 JSW (.pdf 10 pages)
N.B. if you are within US Federal Court legal jurisdiction, and if you are actually hosting copies of the alleged documents, rather than simply publishing links to, or pointing sub-domains at, the home page of WikiLeakS.org servers in Sweden, then you may wish to remain legally ignorant and able to deny that you have actually read the text of this Court order. Try using Tor or other means of obscuring your computer's real IP address, before you open the .pdf file link above, or before you continue to read the rest of this blog article.
A minor point first: The Order was signed on Thursday 14th February has immediate effect, and it orders that a copy must be emailed to the Defendants by the following day Friday
However the previous Order forcing Dynadot to suspend the Domain Name Registration of WikilLeaks.org , also had immediate effect, thereby stopping all emails to legal@wikileaks.org.etc. - how do the lawyers expect an email to be delivered to a no longer active internet domain name ?
The number of innocent people, and the "collateral damage" implied by this list of people and organisations, many of whom are outside of the USA, is huge:
all of the Wikileaks Defendants’ DNS host service providers, ISP’s, domain registrars, website site developers, website operators, website host service providers, and administrative and technical domain contacts, and anyone else responsible or with access to modify the website[...]
Defendants are to immediately provide Plaintiffs’ counsel with the name, address, telephone number, and facsimile transmission number for all of their DNS hosting services, ISP’s, domain registrars, website site developers, website operators and website host service providers,
Thirdly, and almost comically, the greedy lawyers, instead of being content with just the list of alleged documents relating to the tax evasion, money laundering and, perhaps, some perfectly legal financial activities in the Cayman Islands subsidiary of Bank Julius Baer, they had to, stupidly, include
"whether or not such documents and information are authentic, semi-altered, semi-fraudulent or forged,"
How can you possibly claim copyright infringement damage on forged documents ?
This looks like an unintended, but logical consequence:
"internal non-public company documents and/or which contains private client or customer bank records and/or identifies client or customer names, data, account records and/or bank account numbers,"
This could mean the crippling all of Bank Julius Baer's own use of the internet to provide private electronic banking and financial investment advice to their customers over the internet.
The Order does not just cover Wikileaks but also the insiders and whistleblowers inside Bank Julius Baer, who might be tempted to blow the whistle on their internet media inept employers.
Like any modern international financial institution, Bank Julius Baer promotes itself on the world wide web at
Which at first glance should be exempt from the Order, as public internet web server pages, files and images are not usually
internal non-public company documents
However even the English language version of their home page contains this bit of HTML source code comments, probably related to the press release news items. However this contains some Javascript source code warnings:
var __wpmExportWarning='This Web Part Page has been personalized. As a result, one or more Web Part properties may contain confidential information. Make sure the properties contain information that is safe for others to read.
How is an Internet Service Provider meant to comply with the Order, except by blocking the Bank Julius Baer public website, which may contain confidential data
Even worse, like most large financial institutions, Bank Julius Baer operates services via the internet, through which their customers can access their bank accounts, investment portfolios, investment research advice etc. - all of which is not public, but private data or documents, and therefore covered by this Restraining Order.
- http://www.gam.com Global Asset Management, based in London
- http://www.infidar.ch nfidar Investment Advisory Ltd in Zurich
- https://ebaer.juliusbaer.com eBaer ebanking in Switzerland
- https://e-jbs.juliusbaer.com.sg e-JBS ebanking in SIngapore
- https://e-JBN.juliusbaer.com/ e-JBN
- http://www.jbfundnet.com Fund offer
- http://research.juliusbaer.com JBresearch
This Order also seems to cover the use or abuse of any Bank Julius Baer internet systems e.g. Email or File Transfer or Virtual Private Networks etc. connecting to their Class B IP address allocation from the IP Plus, a subsidiary of Swisscom, the main telecomms company in Switzerland.
inetnum: 159.103.0.0 - 159.103.255.255
netname: BAERNET
descr: Bank Juliusbaer & Co Ltd
country: CH
Any prudent, law abiding Internet Service Provider, or any other Company or Financial Institution, especially those within the legal jurisdiction of the Federal Court in Northern California, i.e. in the entire United States of America, should also block access to and from the internet for these
Since Bank Julius Baer has offices in Los Angeles and New York, these offices at least, should have their internet access blocked, by virtue of this far too widely draughted Order.
The list of files in the Exhibit "A" appendix, which have been culled from the WikilLeakS pages, include the SHA 256 cryptographic secure hash algorithm checksums. These are not mentioned or explained by whoever wrote this Order. If any of the other copies of these alleged documents differ by so much as one single keystroke or space from these particular copies, they will provably have a different SHA 256 checksum, and will be provably not the actual documents specifically mentioned in the Exhibit "A" appendix.
Here is the text of the Permanent Restraining Order, for the benefit of search engine queries:
4405-2\PLE\PROP-ORD-TRO 021408 1 CV08-0824 JSW [PROP] AMENDED TRO & OSC RE PRELIM. INJUNCTION
UNITED STATES DISTRICT COURTFOR THE NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
CASE NO. CV08-0824 JSW
[Hon. Jeffrey S. White][PROPOSED] AMENDED TEMPORARY RESTRAINING
ORDER AND ORDER TO SHOW CAUSE RE PRELIMINARY
INJUNCTION
BANK JULIUS BAER & CO.LTD, a Swiss entity; and JULIUS
BAER BANK AND TRUST CO. LTD, a Cayman Islands entity,
Plaintiffs,
v.
WIKILEAKS, an entity of unknown form, WIKILEAKS.ORG, an entity of unknown form; DYNADOT, LLC, a California limited liability corporation, and DOES 1 through
10, inclusive,Defendants.
TO DEFENDANTS WIKILEAKS, WIKILEAKS.ORG, DYNADOT, LLC, AND THEIR RESPECTIVE ATTORNEYS OF RECORD:
This matter having come before the Court on Plaintiffs BANK JULIUS BAER & CO. LTD’s and JULIUS BAER BANK AND TRUST CO. LTD’s (collectively herein,“Julius Baer” and/or “Plaintiffs”) ex parte application for temporary restraining order and order to show cause re preliminary injunction (“Application”) against Defendants WIKILEAKS, WIKILEAKS.ORG, DYNADOT, LLC and DOES 1-10;
And, the Court having considered the Complaint, the declarations and memorandum of points and authorities presented by Plaintiffs in support of the Application, and any other papers, evidence or arguments presented by the parties in connection with Plaintiffs’ Application;And, the Court having found that good cause exists therefor, and Plaintiffs having shown that immediate harm will result to Plaintiffs in the absence of the requested relief,
What "immediate harm" exactly ?
The names of the alleged tax avoiders and money launderers are published as the file names of the disputed documents in this very Order. The world's tax and financial regulation authorities already have copies of these documents.
IT IS HEREBY ORDERED THAT:1. DEFENDANTS WIKILEAKS and WIKILEAKS.ORG and DOES 1-10 (collectively the “Wikileaks Defendants”), and all of their respective officers, directors, stockholders, owners, registrants, web host providers, DNS hosts, service providers, website site developers, website operators, website server providers, agents, servants, employees, representatives and attorneys, and all those in active concert or participation with the Wikileaks Defendants, and each of them, and all others who receive notice of this order, are, pending hearing on this Court’s below-issued Order to Show Cause, hereby ordered, enjoined and restrained as follows:
(a) RESTRAINED and ENJOINED from displaying, posting, publishing, distributing, linking to and/or otherwise providing any information for the access or other dissemination of copies of and/or images of the JB Property (as defined herein below) and any information or data contained therein, including on the websites operated at wikileaks.org, wikileaks.org.au, wikileaks.org.uk, wikileaks.la, wikileaks.cn, wikileaks.in, wikileaks.org.nz (collectively the “Wikileaks Websites”), and any other websites under their ownership, control and/or which they can post or edit any content;
All of these Domain Names seem to use EveryDNS.net", based in Oregon also seems to be based in California, USA., apart from wikileaks.cn, which seems to have been hijacked by the Chinese authorities.
(b) RESTRAINED and ENJOINED from any current and any further use, display, post, publication, distribution, linking to and/or otherwise providing any information for the access or other dissemination of copies of and/or images of the JB Property and any information or data contained therein, including on the Wikileaks websites and any other websites under their ownership, control and/or which they can post or edit any content;
That last bit is, far, far too broad - it encompasses terns of millions of public blog comment form sor bulletin board discussion fora, or Usenet newsgroup, or email list etc. etc. most of which have web site interfaces or archives, over the entire Internet.
Note the abuse of the words "any other websites" and "any content" without any caveat or qualification whatsoever.
(c) ORDERED to immediately block and otherwise prevent any current and any further use, display, posting, publication, distribution, linking to and/or other dissemination of copies of and/or images of the JB Property and any other new or additional yet unpublished documents and data that constitute or could reasonably be known to be or considered to constitute JB Property, pending further order of this Court;
Astonishingly this is prior restraint of documents or data which does not yet exist !
(d) ORDERED to immediately remove from their Wikileaks Websites, including but not limited to wikileaks.org website, and any other websites owned or operated by the Wikileaks Defendants or within their control, any and all copies of and/or images of the JB Property and any information or data contained therein;
"any and all copies" , "any information or data"
(e) ORDERED to immediately give notice of this Order to all of the Wikileaks Defendants’ DNS host service providers, ISP’s, domain registrars, website site developers, website operators, website host service providers, and administrative and technical domain contacts, and anyone else responsible or with access to modify the website, and that they are to cease and desist from any current and any further use, display, posting, publication, distribution, linking to and/or other dissemination of copies of and/or images of the JB Property and any information contained therein pending further order of this Court;(f) ORDERED to submit proof to the Court, under penalty of perjury, that all JB Property has been removed from the Wikileaks Websites and any and all links or information for access thereof;
(g) ORDERED that the Wikileaks Defendants are to immediately provide Plaintiffs’ counsel with the name, address, telephone number, and facsimile transmission number for all of their DNS hosting services, ISP’s, domain registrars, website site developers, website operators and website host service providers, so Plaintiffs can provide such persons/entities with notice of this Order at Plaintiffs’ election.
The contact details of ISPs and domain registrars are easily available to the whole public - why should the defendants have to have to do this ?
This looks like a fishing expedition for the personal details of the core WikiLeaks.org personnel.
Who believes that such private personal and commercially confidential details would not be abused by Bank Julius Baer and its shyster lawyers Lavely & Singer ?
2. "JB Property" Defined: JB Property includes any and all documents and information originating from Bank Julius Baer & Co. Ltd’s and Julius Baer Bank and Trust Co. Ltd’s banks and affiliated bank branches, which are internal non- public company documents and/or which contains private client or customer bank records and/or identifies client or customer names, data, account records and/or bank account numbers, whether or not such documents and information are authentic, semi-altered, semi-fraudulent or forged, and which appears to have originated from or could reasonably be known to be or considered to constitute or have originated from data and documents stolen or misappropriated from one or more of Plaintiff’s bank branches and/or computers. For example, but is not limited to, the JB Property posted on or made available through the Wikileaks Websites that is subject to this Order and enjoined from further use, display, post, publication, distribution, linking to and/or other dissemination, is listed and set forth on the attached Exhibit “A”.
internal non-public company documents and/or which contains private client or customer bank records and/or identifies client or customer names, data, account records and/or bank account numbers,
This could have the probably unintended consequence of crippling all of Bank Julius Baer's use of the internet to provide private electronic banking and financial investment advice to their customers over the internet.
"whether or not such documents and information are authentic, semi-altered, semi-fraudulent or forged,"
How can you possibly claim copyright infringement damage on forged documents ?
How is anybody outside of the Bank Julius Baer, or the even employees within it, meant to know whether something has been altered or is a forgery ?
All Internet Service Providers and Domain Name Registrars etc. are going to have to assume that anything labelled Bank Julius Baer, and that every sort of internet traffic to or from their allocated IP address ranges, could fall into this stupid, over broad, definition, and that they should therefore block it all, if they are within United States legal jurisdiction.
Have the Bank Julius Baer plaintiffs been hoist by their own litigious petard ?
3. Defendants are hereby ORDERED TO SHOW CAUSE and to appear before this Court in Courtroom 2 (17th Floor), located at 450 Golden Gate Ave., San Francisco, California 94102, at 9.00 am., or as soon thereafter as this matter may be heard on February 29 2008, then and there to show cause (the "OSC Hearing"), if any, that the Wikileaks Defendants, and each of them, and their respective officers, directors, stockholders, owners, subsidiaries, agents, servants, employees and attorneys and all those in active concert or participation with the Wikileaks Defendants or them, and each of them, while pending the determination of this action and further Order of this Court, why a preliminary injunction should not issue continuing the above Temporary Restraining Order.
Apart from some pro bono attorneys, WikiLeakS.org does not have any "respective officers, directors, stockholders, owners, subsidiaries, agents, servants, employees", although Dynadot LLC must have.
"all those in active concert or participation with the Wikileaks Defendants" cannot include everyone
who simply links to the WikiLeakS.org wiki Cover Name URLs, but it might apply to those who actively mirror copies of the disputed documents themselves.
EFFECTIVE DATE/TIMEThe above Temporary Restraining Order is effective immediately upon issuance; and Plaintiffs’ are ordered to file an undertaking within five-business days in the sum of $ 0 Dollars.
Why are these malicious prosecution SLAPPers not having to pay any sort of bond into the Court ?
SERVICE OF PROCESSA copy of this Order shall be served upon the Defendants via email by not later than February 15 2008
This standard Court procedure was obviously never designed for a case where the Defendant's email addresses @wikileaks.org have just been disabled by the previous Court Order with immediate effect.
Disabling the wikileaks.org domain name affects more than just the web servers and wiki, it also instantly cripples the email system.
Surely this alone should be grounds for an Appeal to a higher Court ?
Any Opposition papers shall be served and filed by 12:00 p.m. on February 20 2008, and any Reply papers shall be filed and served via any of the same listed means by 12:00 pm on February 26 2008
Will the WikiLeakS.org lawyers actually manage to do this , possibly electronically ?
IT IS SO ORDERED.
Dated: February 15 2008 _HON. JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE
EXHIBIT “A”The following is an identifying list of certain of the JB Property which was posted on or made available through the wikileaks.org website and which is subject to the Court’s Order and enjoined from further use, display, post, publication distribution, linking to and/or other dissemination:
1.)
Document title: BJB_-_Roberto_de_Andrade-_Gaynor_Jaguar_Angel_Yara_Trusts
URL Link: http://www.wikileaks.org/wiki/BJB__Roberto_de_Andrade_-_Gaynor_Jaguar_Angel_Yara_Trusts
File Name: bjb-andrade.zip
Wikileaks File SHA256
Identity No: 39010e85348a18b7cd091d3dc7b94ffdea076203a08df0d93822a486416b2e3e
Wikileaks 2008-01-18
Release Date:2.)
Document title: BJB_-_Luis_Nozaleda_-_Blanca_R_avena_-_Madrid_-_USD_18_mil
URL Link: http://www.wikileaks.org/wiki/BJB_-_Luis_Nozaleda_-_Blanca_R_avena _-_Madrid_-_USD_18_mil
File Name: bjb-luis-avenvas.zip
Wikileaks File SHA256
Identity No: eac16b8eb17f21e6cfa496dff61aea1d11bd223739e6f093fb9411df4603cb51
Wikileaks 2008-01-18
Release Date:3.)
Document title: BJB_-_Juan_Carlos_Cespedes_-_SF_holdings_-_11_mil
URL Link: http://www.wikileaks.org/wiki/BJB_-_Juan_Carlos_Cespedes_-_SF_holdings_-_11_mil
File Name: bjb-peru.zip
Wikileaks File SHA256
Identity No: ffac47f723724cf36a1f8a015ea81648e70806225fce5af0c182fde6c3480a71
Wikileaks 2008-01-18
Release Date:
4.)
Document title: BJB_-_Mr._Lewis_-_George_Charles_Lampitt_-_tax_avoidence_-_Caym an_-_5_mil
URL Link: http://www.wikileaks.org/wiki/BJB_-_Mr._Lewis_-_George_Charles_La mpitt_-_tax_avoidence_-_Cayman_-_5_mil
File Name: bjb-lewis2.zip
Wikileaks File SHA256
Identity No: cccdc8fd8e24721470f28b3f25f89a69bbf85999dff354cabeb87571bfe5d4e3
Wikileaks 2008-01-17
Release Date:
5.)
Document title: BJB_-_Mr._Lewis_-_George_Charles_Lampitt_-_confusion_of_beneficiary
URL Link: http://www.wikileaks.org/wiki/BJB_-_Mr._Lewis_-_George_Charles_La mpitt_-_confusion_of_beneficiary
File Name: bjb-lewis1.zip
Wikileaks File SHA256
Identity No: e41b7eada762d35555b0493e1fe36235cf3f97d06382479d233140e212f0570c
Wikileaks 2008-01-17
Release Date:6.)
Document title: BJB_-_Heinri_Steinberger,_Frankfurt_Steuerbetrug_EUR_15_mil
URL Link: http://www.wikileaks.org/wiki/BJB_-_Heinri_Steinberger,_Frankfurt_Steuerbetrug_EUR_15_mil
File Name: bjb-heinri-steinberger.zip
Wikileaks File SHA256
Identity No: 51dbed21a2072f3e68c6093c2e08a7e506d0136fba82209eb230dabe32bc51e0
Wikileaks 2008-01-13
Release Date:
7.)
Document title: BJB_-_Vigier_Fintex_-_tax_evasion_Cayman
URL Link: http://www.wikileaks.org/wiki/BJB_-_Vigier_Fintex_-_tax_evasion_Cayman
File Name: schwarze-kasse.zip
Wikileaks File SHA256
Identity No: 2409a1953291e9eeec33af0cc949688bf44b3007e2ee77e4ab13496b3b6fb5
Wikileaks 2008-01-09
Release Date:8.)
Document title: BJB_-_JK_Peng_-_Dragon_Trust_-_Cayman_hidden_money
URL Link: http://www.wikileaks.org/wiki/BJB_-_JK_Peng_-_Dragon_Trust_-_Cayman_hidden_money
File Name: jk-peng.zip
Wikileaks File SHA256
Identit No: f571984e852292cd3cdff4eba2c0a8e4684045440a28fd6dfd700a20f6f4e9b9
Wikileaks 2008-01-09
Release Date:9.)
Document title: BJB_-_Swisspartner_Offshore_Tax_Scheme_-_USD_150_mil
URL Link: http://www.wikileaks.org/wiki/BJB_-_Swisspartner_Offshore_Tax_Scheme_-_USD_150_mil
File Name: bjb-swisspartner-tax-scheme.xls
Wikileaks File SHA256
Identity No: c678a68c006f27651c363ae55c133cfcd3127f99bcea12a4212a63178719df41
Wikileaks 2008-01-13
Release Date:10.)
Document title: BJB_-_Greek_shipowners_Anna_Kanellakis_Alpha_Tankers_-_USD_30_mil_per_year
URL Link: http://www.wikileaks.org/wiki/BJB_-_Greek_shipowners_Anna_Kanellakis_Alpha_Tankers_-_USD_30_mil_per_year
File Name: bjb-alpha-tankers.zip
Wikileaks File SHA256
Identity No: 375ebe8f8249c23a32290c6a424680df39f677707d5a449927f15f5a34c6408c
Wikileaks 2008-01-13
Release Date:11.)
Document title: BJB_-_Steuerbetrug_Juergen_Grossmann_Architekt_-_EUR_25_mil
URL Link: http://www.wikileaks.org/wiki/BJB_-_Steuerbetrug_Juergen_Grossmann_Architekt_-_EUR_25_mil
File Name: bjb-juergen-grossmann.zip
Wikileaks File SHA256
Identity No: bee41d33756939188dfccbaf5eb824b218225f55ebf91067150d4362b5f306dc
Wikileaks 2008-01-13
Release Date:12.)
Document title: BJB_-_Winston_Layne,_New_York_-_USD_10_mil_tax_fraud
URL Link: http://www.wikileaks.org/wiki/BJB_-_Winston_Layne,_New_York_-_USD_10_mil_tax_fraud
File Name: bjb-winston-layne.zip
Wikileaks File SHA256
Identity No: bac726339b1423535ac0bb6336312669d139230e3b089e3533204fc185e7713
Wikileaks 2008-01-13
Release Date:13.)
Document title: BJB_-_Lord_L._Kadoorie_-_China_Light_and_Power
URL Link: http://www.wikileaks.org/wiki/BJB_-_Lord_L._Kadoorie_-_China_Light_and_Power
File Name: bjb-lord-kadoorie.zip
Wikileaks File SHA256
Identity No: 59cc8c9575a07e1928bc4117059d6e74be404c75b666c9dbbdf2c094e45f1c69
Wikileaks 2008-01-13
Release Date:14.)
Document title: Julius_Baer_to_Angela_Merkel
Description: Forged Letter to Angela Merkel from Bank Julius Baer, dated 12 Sept 2007
URL Link: http://www.wikileaks.org/wiki/Julius_Baer_to_Angela_Merkel
File Name: angela-merkel.pdf
Wikileaks File SHA256
Identity No: 5f201de05f3d8eb32c0a961402be4324b05cea803d58382c0ca814e85dee34ab
Wikileaks 2007-11-26
Release Date:4405-2\PLE\PROP-ORD-TRO 012908
10
EXHIBIT "A" [PROP] TRO & OSC RE PRELIM. INJ.
@ Mr. K - illegal action, with only a temporary effect, like you suggested, would just play straight into the hands of the Bank and their shysters.
Erm, is it even legal to comply with that?
What happens if "developers" or "operators" reside in the EU. The EU has something it calls "privacy laws" you can't just retransmit details. You may not even be allowed to send them into the US as it might not be considered to have adequate privacy laws.
Which law wins in this case?
The order is utter nonsense. They must have employed a team of monkeys with a combined IQ of a fencepost to draft the order.