NAA Joins Amicus Brief in Wikileaks Prior Restraint Case

Wikileaks.org invited postings of leaked material to expose unethical corporate and government behavior. Among documents provided to the website were some that allegedly revealed money laundering and tax evasion trust structures of the Julius Baer Bank & Trust, based in the Cayman Islands. Julius Baer brought a lawsuit, alleging that a disgruntled employee had provided stolen documents to the website in violation of a confidentiality agreement and banking laws. The U.S. District Court for the Northern District of California issued a permanent injunction ordering the domain name registrar to disable the site’s domain name and lock it against transfer to another registrar. The court ordered the site to cease distribution of the bank documents, but they remained accessible via the Internet protocol address.

On February 26, 2008, NAA joined a coalition led by Reporters Committee for Freedom of the Press in an amicus curiae brief before the district court. The brief argued that the restraining order and injunction were unconstitutional prior restraints, citing New York Times Co. v. United States ("Pentagon Papers Case"), 403 U.S. 713 (1971); and Procter & Gamble Co. v. Bankers Trust Co., 78 F.3d 219 (6th Cir. 1996). The brief argued that Section 230 of the Communications Decency Act barred Julius Baer’s claim against Wikileaks and the domain name registrar, because Section 230 (c)(1) provides an interactive computer service with immunity from state tort claims based on publication of information provided by another content provider. It was anticipated this amicus brief might be the only one addressing thoroughly the First Amendment and related questions at stake.

In late February, the district court judge reversed his earlier order, stating from the bench that it had raised "serious questions of prior restraint and possible violations of the First Amendment." Reuters reported that, in late February, Julius Baer and Dynadot entered a settlement agreement to take the website down. In a court filing March 6, 2008, Julius Baer dropped its lawsuit against Wikileaks and the domain name registrar.

First Published:
April 21, 2008