On Monday I wrote about the unprecedented attempt by Bank Julius Baer to censor the Wikileak.org web site by having a San Francisco judge issue a restraining order telling the web site's domain name registrar to stop Wikileak.org from pointing to its actual IP address, 126.96.36.199. This was the first know instance of a court shutting down an entire web site. One Kafkaesque feature of this omnibus order is that the court order and other materials were ordered to be emailed to Wikileaks. But with the domain name Wikileaks.org abolished, no mail sent to them could get to anyone.
Two days after my article, the New York Times finally covered the Wikileaks censorship effort and concluded:
Judge White’s order disabling the entire site “is clearly not constitutional,” said David Ardia, the director of the Citizen Media Law Project at Harvard Law School. “There is no justification under the First Amendment for shutting down an entire Web site.”
The narrower order, forbidding the dissemination of the disputed documents, is a more classic prior restraint on publication. Such orders are disfavored under the First Amendment and almost never survive appellate scrutiny.
Since the controversy broke Monday, this censorship has become a major topic in the news and on the web. after all, the shutting down of an entire web site threatens all citizens who use or rely upon the web for disseminating and obtaining a diversity of otherwise unobtainable information. A new blog site, http://wikileak.org/, has been created:
to discuss the ethical and technical issues surrounding the WikiLeakS.org project, which claims to be developing an "uncensorable" version of WikiPedia, for "mass document leaking" and whistleblowing.
While I have no direct knowledge of who is behind this new site , I assume it is tongue-in-cheek when it goes on to state:
This blog is not yet affiliated with the secretive and media manipulative WikiLeakS.org project, but the issues for discussion remain important, regardless of whether or not WikiLeakS.org ever overcomes its technical, legal, ethical and funding problems.
At this point they have a detailed analysis of the second restraining order against Wikileaks in which they argue that it is so broad that it may actually ban virtually all internet activity by the bank, Bank Julius Baer, that brought the suit! Read it and see for yourself.
The order was issued, allegedly because Wikileaks had obtained bank documents that, according to Wikileaks:
“allegedly reveal secret Julius Baer trust structures used for asset hiding, money laundering and tax evasion.”
Wikileaks has made a discovery potentially shedding light upon the bank's motives in the case. Bank Julius Baer was about to launch a $1 billion IPO, and that the press attention and increased regulatory scrutiny flowing from it may well scuttle this deal. After all, it's hard to launch an IPO when there are suggestions in the press and the blogosphere that your profts may be due to money laundering. It may turn out that this restraining order was an act of self destruction by Bank Julius Baer with few parallels. As a Wikileaks press release explains [not being a profesional journalist, I can actually quote their press release instead of paraphrasing and pretending I did the reporting myself]:
Wikileaks has discovered Bank Julius Baer was preparing to take their US operation public via an a billion dollar IPO. They filed the prospectus with the SEC on Feb 12, a mere three days before convincing Federal court Judge Jeffery White to order total censorship of the transparency site.
"We are an asset management company that provides investment management services to institutional and mutual fund clients. We are best known for our International Equity strategies, which represented 92% of our assets under management as of September 30, 2007." They were going to call the business "Artio" (ticker symbol ART, to be listed on the NYSE). Goldman Sachs and Merrill Lynch were to underwrite the IPO according to Bloomberg.
So the last thing they needed was to be the subject of a New York Times story and all over the world press, associated with money laundering. Now the deal goes under a microscope. Their underwriters have to take a second look and the SEC may have questions. Julius Baer will probably have to file a "material event" 8-K report with the SEC. Newspaper and magazine reporters will be looking at Baer. The question will be raised that the rather high returns Baer reports may be achieved via money laundering.
All this is happening in a down market, in which it is hard to do an IPO and in which investors are very sensitive to unexpected risk. The whole deal may evaporate, or be repriced downward.