Wikileads

When Bank Julius Baer couldn’t find a Wikileaks representative to bring to court, the Cayman Islands bank served a Wikileaks Facebook group officer with a summons.

The summons filed by the bank stated that Daniel Mathews, a Stanford grad student who writes for Wikileaks (but not about Bank Julius Baer), was an officer of Wikileaks - even though he was not. Mathews had contributed to Wikileaks, authoring articles as a volunteer, but had no behind-the-scenes authority.

However, he was - and still is - Stanford’s representative for the Wikileaks Facebook group.

According to Mathews’ attorney, Joshua Koltun, the motion brought against Mathews had no legal bearing.

“I think they were basically trying to grasp for straws,” said Koltun, explaining why lawyers for Bank Julius Baer dragged Mathews into the case. The lawyers, Koltun said, were trying to “impress the judge with the notion that they had served Wikileaks.”

“I’m assuming they were just Googling and prodding around in search of someone to serve,” he said.

Last week I spoke with Koltun about Wikileaks, Mathews and Bank Julius Baer to find out who was liable in this case and to try to determine which of Wikileaks’ actions could get them in trouble with the law.

Here are some highlights:

Why was Daniel Mathews pulled into the Julius Baer case?

“I’m not sure,” Koltun said. “It is unclear whether they [Bank Julius Baer] actually believed he was an officer for Wikileaks.”

“I certainly would think that once they confirmed he was an officer of a Facebook page … they should have figured it out,” he added.

Koltun was also unsure if Judge Jeffrey S. White understood the implications for a site that operates as a Wiki - namely, that under Section 230 of the Communications Decency Act, a person who contributes to a Website is responsible only for the content they produce, and not the content added by others.

Because Daniel Mathews did not write articles about Bank Julius Baer, under Section 230 he was not liable for any Wikileaks content related to the bank. Also, because he did not leak the documents that led to the lawsuit, he was not liable for that part of the case, either.

So when Mathews was served, Koltun responded quickly, authoring a brief to explain why his client should not be involved - and also why the California court’s injunction to shut down Wikileaks infringed on Mathews’ rights by preventing him from sharing his articles with a public audience.

“If someone approaches you with something you think is unconstitutional, as a lawyer you better damn well go into court and fight it,” Koltun said.

(For more on Daniel Mathews and Bank Julius Baer, read this post.)

What about Wikileaks? Could they get in trouble for leaking a classified document - even when the document proved Bank Julius Baer was breaking the law?

“The Cayman Islands bank. What do those guys do?” Koltun said. “They provide anonymity for people who are hiding money from the IRS.”

“The bank secrecy laws of offshore tax havens are designed to break the laws of other countries,” Koltun said about the Cayman Islands, Switzerland and other countries known for secretive banking practices.

But when information about these banks leaks, “law enforcement in America is all over that,” Koltun said. U.S. law does not follow the privacy laws of other countries, Koltun said, citing the current debacle about leaked Liechtenstein bank documents as an example.

Leaking secret bank documents is illegal in some countries, but in the U.S., the opposite is true. Holding onto documents that you suspect contain evidence of wrongdoing could get you in trouble with the law. It’s against public policy to keep a crime under taps.

This means that the person who’s liable in Bank Julius Baer v. Wikileaks is former Julius Baer COO Rudolf Elmer, who bank officials claim leaked the documents to Wikileaks.

Bank Julius Baer even claimed to know who the narc was, but still pursued Wikileaks and Mathews.

At least they did until March 6, when the bank dropped the case without explanation.

On collaboration and anonymity - and how they apply to Wikileaks:

“People can collaborate in a way that they have never collaborated before” because of the Internet, Koltun said. And Section 230 of the Communications Decency Act protects contributors to sites like Wikileaks and Wikipedia from liability in most cases.

“The internet is this great engine that’s permitting all these great things to come into being,” Koltun said. “Part of what Congress specifically wanted to do [with Section 230] was give some breathing room to the innovators so people wouldn’t be dissuaded from taking advantage of all these things.”

“If you had to start worrying that every time you participate in some sort of inchoate group over the Internet that you would become liable … you’d never want to join one of these things.”

Koltun pointed out that Wikileaks does not hold a monopoly on anonymity on the Internet:

“The practical reality is, to a very large extent, the Internet gives anonymity to people already.”

Wikileaks just takes anonymity to the extreme.