Resolving Wikileaks

Wikileaks is not out of the woods yet. The full hearing for the suit brought by Bank Julius Baer is scheduled on May 16, with motions, countermotions and briefs due at some intervals until htn (see the details from CNet’s Declan McCullagh, who was the only reporter to pass it along.) [UPDATE 3/6/08: BJB has vacated the lawsuit. David Ardia at CMLP points out that BJB stated they have the right to pursue these claims in another court.]

Clearly the District Court cannot make the undesirable information disappear, any more than they could if it were printed in the newspapers. Still, my limited understanding of the law, and my glimpses of Judge White through the news accounts, give me the sense that he doesn’t want a mockery made of the proceedings.

Wikileaks has become a first amendment martyr without even being a legal entity.

Something doesn’t sound right about that.

Nor should it sit very well that none of the journalism institutions picked up on this, and have all given Wikileaks a pass so far.

Most news operations pay for libel insurance. Wikileaks, being a non-entity that can never be sued, doesn’t need to. Why were these news operations were so quick to defend a free-rider?

Suppose that Judge White eventually delivers an opinion which damns Wikileaks for the sort of ethical shortcuts illustrated here: they have no sense about the motivations of leaking, no policy about deleting libellous content, no ability to distinguish one editor from the next, and no named publisher to take responsibility. The dangerous precedent here is that any individual can launch a website, declare themselves an “interactive computer service,” disappear from the chain of responsibility, and claim immunity under CDA 230.

It’s possible that Judge White may demand any of those changes (with what leverage, I don’t know). Perhaps Wikileaks may get wise and pre-empt him.

Here’s another thought: suppose that Rudolf Elmer pulled the BJB-related information off of Wikileaks, and onto a server which he takes ownership of. He could establish higher ethical guidelines than currently exist on Wikileaks, and may even be able to attract tax investigators from all over the world to moonlight (if possible). It would be a fantastic public resource, to be called the “Tax Raven” or the “Tax Shelter Melter” or whatnot.

Suppose also the server remained within the court jurisdiction of the Northern District of California, and was the target of a lawsuit by a foreign bank. Would the same phalanx of journalistic and civil liberties organizations rush to their defense?

I have no idea. Given the undeniable weight of case law in favor of free speech protections, I can’t see there being much more risk by removing the veil of anonymity. One would hope that the added heft of a publisher taking responsibility for the information would make it much more credible in the eyes of the public. Otherwise, our values of journalism surely have flipped.