Recently in Censorship threats from Lawyers Category

Just what sort of media, whistleblower source protection, anti-libel tourism etc. legislation , are Julian Assange , Daniel Schmitt and the other WikiLeakS,org activists actually helping to draft in Iceland ?

Chris Vallance from the BBC has an article and video interview with some of those involved: Wikileaks and Iceland MPs propose 'journalism haven'

Coupled with Iceland's attractions for companies looking for cheap, non-carbon cycle electricity and cooling for their internet server farms, such legal protection could be very attractive to "cloud computing" and publishing services.

Will WikiLeakS.org get some server space and bandwidth in Iceland ?

Perhaps they should firstly pay US$ 250 for the wiikileaks.is Icelandic domain name registration (limited to Icelandic citizens) ?

Will the Icelanders manage to shame the increasingly repressive and hypocritical European and North American Governments into sorting out their own equivalent laws, which also badly need reform in the internet age ?

Here are some more details of what is being proposed:, but not an actual detailed legal Bill:

Icelandic Modern Media Initiative - Proposal

Following the Judge's ruling last week, the case in the California Northern District Federal Court against WikiLeakS.org has now been dropped.

The Electronic Frontier Foundation have a copy of the Plaintiff's Notice of Dismissal (.pdf 4 pages) whereby William J. Briggs II, a junior lawyer from Lavely & Singer files a Voluntary Motion of Dismissal without prejudice on behalf of the Swiss bank Bank Julius Baer and their Cayman Islands tax haven subsidiary Julius Baer Bank Trust Co. Ltd in their ill advised public relations disaster against Wikileaks.org, their domain name registrar Dynadot LLC, and the 10 unnamed John Does.

TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

PLEASE TAKE NOTICE that Plaintiffs BANK JULIUS BAER & CO. LTD and JULIUS BAER BANK AND TRUST CO. LTD (“Plaintiffs”) hereby
voluntarily dismisses, without prejudice, the above captioned action in its entirety, whereby Plaintiffs may, at their option, later pursue their claims, including in an alternate court, jurisdiction or venue.

See the rest of the EFF's copies of the Court documents: Bank Julius Baer& co. v Wikileaks

By dropping the case, after the strong hints from the Judge to think again, now that the "cat is out of the bag" in regard to the alleged documents which have been published via WikiLeakS.org, the remaining Motions to Intervene by various media and civil liberties organisations and individuals will not now be heard, .

Lavely & Singer, based in Century City, near Hollywood, claim to be "one of the world's premiere talent-side entertainment litigation firms", which may well be true.
However, their legalistic bullying tactics and failure to understand, or deliberate misrepresentation of the internet's technical infrastructure, has rebounded on their clients Bank Julius Bär.

Rightly or wrongly now, for many people, and for search engine queries into the future, Bank Julius Baer is associated with with illegal tax evasion and money laundering.

"Bad publicity" might be better than "no publicity" for Hollywood media celebrity wannabes, but that should be an anathema for a Swiss Bank whose business model is supposedly to provide confidential, trust based private banking and investment "wealth management" services for the very rich.

Plaintiffs may, at their option, later pursue their claims, including in an alternate court, jurisdiction or venue.

Surely the Gnomes of Zürich cannot be so stupid as to commit commercial suicide, by continuing to employ "media celebrity attack dog" lawyers ?

This case also highlights some more Questions about the WikiLeakS.org project:

The WikiLeakS.org domain name has now been restored, and seems to be working ok.

The Electronic Frontier Foundation has a copy of the
Order Denying Preliminary Injunction; Dissolving Permanent Injunction; and Setting Briefing and Hearing Schedule (.pdf 7 pages)

Here are a few highlights:

1. Subject Matter Jurisdiction.

[...]

Although there is no firm evidence of the United States District Court
citizenship of the named defendants, except Dynadot, during the oral argument on the pending motion, counsel for Mr. Shipton appeared and represented that the owner of the domain name wikileaks.org is a citizen of Australia and a resident of Kenya.

[...]

The Court is concerned that it may well lack subject matter jurisdiction over this matter in its entirety.¹

[...]

¹ Although Plaintiffs pleaded jurisdiction under 28 U.S.C. § 1350 for a "civil action by an alien for a tort committed in violation of a treaty of the United States," the Complaint does not state a cause of action under any specific treaty, and counsel for Plaintiffs conceded that the Court does not maintain jurisdiction under this alternative ground. (See Compl., ¶ 2.)

Bank Julius Baer and their lawyers Lavely & Singer consistently failed to mention to the Court the fact that the disputed documents were being published from web server(s) based in Stockholm , Sweden,

They also tried to give the false impression that the a Swiss Bank , its Cayman Islands tax haven subsidiary, and WikiLeakS.org were somehow under US jurisdiction in California, and that the US federal Court had "diversity jurisdiction".

2. Public Interest.

[...]

Although the matter of the First Amendment implications of the permanent injunction against Dynadot or the more limited preliminary injunction Plaintiffs seek against WikiLeaks has not been fully briefed, it is clear that in all but the most exceptional circumstances, an injunction restricting speech pending final resolution of the constitutional concerns is impermissible. See Proctor & Gamble Co. v. Bankers Trust Co., 78 F.3d 219, 226-27 (6th Cir. 1996).

The First Amendment to the United States Constitution, guaranteeing freedom of speech and freedom of the press, has been upheld.

3. Efficacy of an Injunction.

The record currently before the Court indicates that even the broad injunction issued as to Dynadot had exactly the opposite effect as was intended. The private, stolen material was transmitted over the internet via mirror websites which are maintained in different countries all over the world. Further, the press generated by this Court's action increased public attention to the fact that such information was readily accessible online. The Court is not convinced that Plaintiffs have made an adequate showing that any restraining injunction in this case would serve its intended purpose. See Nebraska Press Association v. Stuart, 427 U.S. 539, 569 (1976). In addition, there is evidence in the record that "the cat is out of the bag" and the issuance of an injunction would therefore be ineffective to protect the professed privacy rights of the bank's clients.

[...]

Hopefully rich individual or corporate or Government clients will now think twice about employing the services of media vanity lawyers,
like Lavely & Singer in the USA, or Schillings in the UK, who specialise in trying to intimidate the media and individuals, when trying to cover up the scandals of minor celebrities. These lawyers now try to sell themselves as being "internet experts", but they are plainly out of their depth, and actually do more harm than good for their clients.

4. Narrowly Tailored Remedy.

[...]

Because the Court is not convinced that the existing permanent injunction is the least restrictive means to achieve Plaintiffs' goals, this additional reason counsels against maintaining the permanent injunction or issuing a preliminary injunction at this time.

The exaggerated claims made by Lavely & Singer, which the Judge initially allowed in the Temporary Restraining Order, were so over broad and catch all. that they could actually have resulted in the client Bank Julius Baer having its own private customer services internet traffic being blocked.

CONCLUSION

For the above reasons, the Court DISSOLVES the stipulated permanent injunction between Plaintiffs and Dynadot. In addition, the Court DENIES Plaintiffs' motion for a preliminary injunction and DECLINES to extend the TRO.

[...]

IT IS SO ORDERED.

Dated: February 29, 2008

JEFFREY S. WHITE
UNITED STATES DISTRICT JUDGE

The Judge has seen sense, when presented with the fuller picture, courtesy of the "friends of the Court" briefs by various media and civil liberties groups.

Evan Spiegel, of Hollywood media celebrity vanity lawyers Lavely & SInger has filed a couple of extraordinarily inept Exhibits which were somehow supposed to counter the amicus curiae brief and the Motion to Intervene briefs in the Bank Julius Baer versus Wikileaks case..

See the Electronic Frontier Foundation's copy of Decl. of Evan Spiegel in Support of Plaintiff's Supplement Brief in Support of Application for Preliminary Injunction (.pdf )

Attached hereto as Exhibit "B" is a true and correct copy of printouts from the Wikileaks Websites, an example, from many, evidencing content and extensive edits provided by Wikileaks.

Although this is a legal document submission in a court case, under a system which uses electronic filing of documents and submissions, which are then available to the public and the media for a small fee, and is therefore not a "leaked whistleblower document", the mistakes in redaction and censorship are relevant to such leaked documents.

Exhibit "B" is a supposedly a "true and correct
copy" of the WikiLeakS.org web page from which the alleged .zip file archive relating to Heinri Steinberger, and Bowsprit Investments Ltd can be downloaded (page 9) and also a highlighted printout of the associated wiki page revision history (page 10)

Current WikiLeakS.org versions of these pages:

• Heinri Steinberger leak introduction page - current version of Exhibit "B" page 9

• wiki edit history page - current version of Exhibit "B" page 10

These Wikileaks user labelled edits are only to the explanatory page,which includes a link to the actual This page (page 9) describes the nature of the leaked document, and also any caveats or warnings about its authenticity. Some of this information will have come via the document submission form which the anonymous whistleblower filled in, and some will be commentary and/or language translation, provided by one or more WikiLeakS.org volunteers with privileged access to the system.

This wiki edit history page is not evidence of any editing or amendment of the actual leak documents in the compressed .zip file archive. It is not even evidence that anybody has actually opened the archive and ever read any of the alleged documents.

As it happens, some of the documents within this particular .zip archive, the Microsoft Word .doc files, rather than the Microsoft Excel spreadsheet files, have the Hidden bit set, so there is no guarantee that casual readers of this page will have seen and read all of the allegedly private information, which, according to Lavely & Singer may or may not be authentic or forged, in any case.

This Exhibit "B" appears to be an image scan of a printout out of an online web page, which has been incompetently redacted, with black marker pen, and then image scanned back into electronic .pdf file format, How can this be be sworn and attested to be a "true copy" ?

Extraordinarily, someone has attempted to hide the name Heinri Steinberger from the explanatory notes text about the leaked document, both in English and in the longer version in German.

They have also tried to do the same where the name is part of the computer file name and / or URL web page link.

Incredibly on page 9 of the Exhibit "B" they have not censored or redacted the actual postal address ("Freiherr von Stein 16, 60000, Frankfurt 70") of this supposedly highly confidential Bank Julius Baer client.

By not actually censoring the tail of the lower case "g" in Steinberger and by not properly blacking out either the text, or all of the surrounding white space, this could easily let people guess the words or names which are being censored or redacted.

However, even such guesswork is unnecessary, as on th next page, page 10 of the Exhibit "B", the printout from the WikiLeakS.org wiki page history revisions audit trail, the name appears in extra large text in the title of this page !

"BJB - Heinri Steinberger, Frankfurt Steurbetrug EUR 15 mil"

"Steuerbetrug" means "tax fraud or tax evasion", i.e. an illegal activity, rather than legal tax avoidance or tax management.

"EUR 15 mil" mean 15 million Euros (currently about 22.5 million US dollar))

Is this how Lavely & Singer are protecting the clients of Bank Julius Baer, by repeating the allegations of illegal activity in Court documents which are submitted electronically, and which are available to the public and the media for a small fee ?

Will Lavely & Singer now try to censor all the legal document databases and websites which will have copies of these Court documents ?

The Electronic Frontier Foundation has some copies of even more of the legal documents in the Bank Julius Baer versus Wikileaks case (.pdf 3 pages)

The good news is that Judge Jeffrey S. White has rejected the weaselly submissions of the Hollywood media celebrity vanity lawyers Lavely & Singer, acting for Bank Julius Baer, and is allowing the amicus curiae brief and Motions to Participate filed by various media and civil rights groups, and by some individuals who are having their access to WikiLeakS.org censored, to be heard by the Court.

See Court's Questions for Hearing (.pdf

He has allocated 25 minutes for each of the sets of lawyers to give oral answers to the Questions he has posed,

The fact that he is asking about the major First Amendment prior restraint prohibition, and whether Dynadot domain name registrar is exempt from legal action by virtue of the Communications Decency Act, and how the plaintiffs intend to enforce the Permanent Injunction, if it is still allowed to stand, all seem to be positive Questions for the defendants.

The Question of whether or not an accredited legal Counsel for Wikileaks turns up at the hearing later today (Friday 29th February 2008, 9:00am Pacific Standard Time = GMT +8 hours) is probably negative for Wikileaks, but only if nobody actually appears.

The Questions :

The following 12 media organisations have filed a joint Amici Curiae ("friends of the Court") brief in support of WikiLeakS.org against the claims of Bank Julius Baer and their lawyers Lavely & Singer.

1. Reporters Committee for Freedom of the Press
2. The American Society of Newspaper Editors
3. The Associated Press - (AP) world wide news agency, based in New York
4. Citizen Media Law Project
5. The E.W. Scripps Company - newspapers, TV, cable TV etc.
6. Gannet Co. Inc - the largest publisher of newspapers in the USA, including USA Today
7. The Hearst Corporation - media conglomerate which publishes the San Francisco Chronicle
8. The Los Angeles Times
9. National Newspaper Association
10. Newspaper Association of America
11. The Radio-Television News Directors Association
12. The Society of Professional Journalists

See Brief of Amici Curiae (Media Coalition) (02-26-2008) (.pdf 17 pages)

These two groups have also filed a brief: Public Citizen - founded by Ralph Nader, together with the California First Amendment Coalition

See Public Citizen / CFAC brief (.pdf 13 pages)

These organisations have also filed their own Motion to Intervene as well: The Electronic Freedom Foundation (EFF), the American Civil Liberties Union (ACLU), the Project on Government Oversight (POGO), and an individual US based WikiLeakS.org user.

See Motion to Intervene and Supporting Memorandum (.pdf 15 pages)

Did the Hollywood media celebrity lawyers Lavely & Singer warn their clients Bank Julius Baer that their meddling with US First Amendment rights would result in so much expert legal opposition ?

The Los Angeles Times, seems to be first with the news that at last, there now seems to be some legal opposition , to the California Northern District Federal Court orders against WikiLeakS.org, on behalf of Bank Julius Baer:

Judge is asked to rescind shutdown of Web site

Media and public interest organizations tell the jurist that his order violates constitutional provisions against prior restraint of free speech.

By Henry Weinstein, Los Angeles Times Staff Writer
4:41 PM PST, February 26, 2008

A coalition of media and public interest organizations went to federal court in San Francisco today to urge a judge to reconsider shutting down a muckraking Web site that publishes business and government documents leaked from around the world.

Lawyers for the Electronic Frontier Foundation, the American Civil Liberties Union and several news organizations told U.S. District Jeffrey White that two orders he issued last week to take wikileaks.org off the Internet were a prior restraint on free speech that violated the First Amendment.

"The First Amendment prohibits prior restraints in nearly every circumstance, even where national security may be at risk and even when the source unlawfully obtained the documents," the documents, filed on behalf of 12 media organizations, including The Times, Associated Press , Gannett, Hearst, the Reporters Committee for Freedom of the Press and the Society of Professional Journalists, said.

This must surely be rather more heavyweight legal opposition than Bank Julius Baer and their lawyers Lavely & Singer, were expecting.

[...]

Wikileaks.org urges people to post leaked documents in an effort to discourage "unethical behavior" by corporations and government agencies. Matt Zimmerman, of the Electronic Frontier Foundation, which filed separate papers asking White to reverse his ruling, said the case posed a key test of free speech on the Internet.

henry.weinstein@latimes.com

Hopefully the Judge will be able to rule in favour of WikiLeakS.org and to uphold the well established legal prohibitions against "prior restraint" under the First Amendment to the US Constitution.

You can read one of the brief, by the Public Citizen and the California First Amendment Coalition:

Press release: Federal Court Should Not Have Shut Down Wikileaks.org, a Web Site for Whistleblowers

Public Citizen and California First Amendment Coalition brief (.pdf 13 pages)

This argues strongly that

It is worrying that the WikiLeakS.org project did not manage to file, even electronically, any counter arguments to the exaggerated and misleading claims by their opponents in the California Northern District Federal Court.

See the (.pdf) copies of the Court Orders and Submissions at the
Citizen Media Law Project's Julius Baer Bank and Trust v. Wikileaks archive.

The TRO and OSC set Wednesday, February 20, 2008 at 12:00 p.m. as the deadline for Defendants and anyone else to file and serve any opposition to the issuance of the Preliminary Injunction

However, the Bank Julius Baer and ther lawyers Lavely & Singer have gleefully filed another document, trying to make out that because WikiLeakS.org have not filed anything in writing, that this somehow justifies the Plaintiffs' claims.

See Banks' Notice of Non-Opposition (02-22-2008) (.pdf)

There has been a fair amount of publicity in the blogosphere promoting the actual IP address 88.80.13.160 of the WikiLeakS.org servers at IPQ Internet in Stockholm, Sweden.

There have been some inaccurate reports in the the mainstream media about lots of "mirror sites". There do seem to be some sites which are mirroring actual copies of the disputed documents in the Bank Julius Baer legal action against Wikileaks in California e.g. Cryptome.org, and the documents are available via the BitTorrent distributed peer to peer file sharing network.

However most of these alleged mirrors hold no actual copies of the documents at all, and just point some of their Domain Name Service sub-domains at the 88.80.13.160 IP address in Stockholm. This is important, as many of these Cover Names are not legally under the jurisdiction of the United States of America or the People's Republic of China etc. which are trying to censor WikiLeakS.org.

There are other alternative ways of getting your web browser software to connect to this website, some of which may be useful for getting around some crude methods of PC client or local router based censorware, if some organisations may choose to add this IP address to their banned lists.e.g.

• http://88.80.13.160/ - the normal dotted quad form of the IP address

• http://1481641376/ - the decimal form of the IP address

• http://0130.0120.0015.0240/ - the octal form of the IP address

• http://0x58.0x50.0x0D.0xA0/ - one of the hexadecimal forms of the IP address

• http://0x0058.0x0050.0x000D.0x00A0/ - another of the hexadecimal forms of the IP address
  

There are all sorts of other possibilities including padding with leading zeros, hex encoded ascii characters, double byte Unicode representations etc., and mixing some or all of these formats within a single URL. Modern web browser will usually translate all of these variants into the real IP address.

Unless any Court Orders catch all of these possible variants, it may be that you can legally evade any censorship.

Remember that some other "wikileaks" domain names
are specifically mentioned in the second Temporary Restraining Order, and they all use the services of the California based EasyDNS.net, which will , no doubt, comply with the Order, if and when it is actually served on them specifically.

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;

wikileaks.cn was already out of action due to the Chinese Government censors.

wikileaks.org.au and wikileaks.org.nz frame forward to point to wikileaks.cx instead of the now US censored wikileaks.org

wikileaks.org.uk, wikileaks.la, and wikileaks.in point directly to 88.80.13.160

The published Wikileaks Connection Anonymity page has an out of date list of Cover Names:

Below is a List of Wikileaks Cover Names, which worked on 24th February 2008:

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

http://www.juliusbaer.com

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: