The intent of the order was to prevent WikiLeaks from distributing documents to which BJB lays claim (a separate order directing WikiLeaks to remove the disputed documents also was issued). But blocking the Wikileaks.org domain name hasn't made the documents inaccessible; it has, however, raised the ire of free speech advocacy and media groups, who have condemned the disabling of the Wikileaks.org domain name as a violation of the First Amendment.
More than a dozen advocacy and media organizations including The American Civil Liberties Union, The American Society of Newspaper Editors, and The Project on Government Oversight filed legal briefs in support of WikiLeaks.
On Thursday, BJB defended its actions. The bank issued a statement insisting that it never intended to hinder anyone's right to free speech. It said it has made no attempt to remove defamatory material on the WikiLeaks site that refers to BJB but does not include sensitive personal information of the bank's clients.
"The documents in question are protected and prohibited from unauthorized publication under U.S., California, and foreign consumer banking and privacy protection laws," BJB said. "The posting of confidential bank records by anonymous sources significantly harms the privacy rights of all individuals."
In a counter-statement issued on Thursday, WikiLeaks said, "This is a lie. Baer's requests to the court to [shut down WikiLeaks] are a matter of public record. The only change made by Judge Jeffery White to Baer's proposed Wikileaks.org takedown order was to cross out the word 'proposed'!"
"The bank's argument that what they are doing does not implicate the First Amendment is outrageous," said Turner. "The bank seems to be taking any position it can to be able hide documents that are potentially embarrassing, without regard to the law."
WikiLeaks disputes BJB's characterization of the documents in question as bank records. "The documents are nearly all Microsoft Word files setting up trust arrangements used as anonymizing shell structures," WikiLeaks said in its statement. "In its court filings, Baer claims to have been aware of the documents release since 2003 and the Swiss media had the documents in 2005. The only relevance these documents have now is that they expose the bank's ultra-rich clients suspiciously funneling money through Cayman Islands trusts nearly a decade ago."
The WikiLeaks statement says that it had been skeptical about the authenticity of the documents until the bank took legal action. "Baer, in attempting to shoot the messenger, has only succeeded, spectacularly, in shooting itself," said WikiLeaks.
Indeed, the attention generated by the case seems to have put BJB at a disadvantage. According to Zimmerman, who attended Friday's hearing, Judge White seemed to recognize that technology may have outstripped the court's ability to grant relief in this case and questioned whether an injunction could be effective. "[Judge White] specifically said new technology raises serious concerns for the courts and sometimes constitutional jurisprudence doesn't walk in lockstep with advancing technology," he said.