Banks Face a Tough Legal Fight With Wikileaks

wikileaks 3 1 0 Banks Face a Tough Legal Fight With WikileaksIf Wikileaks frontman Julian Assange is to be believed, then an impending document dump from his organization will significantly cripple a major U.S. bank

In a late-November Forbes interview, Mr. Assange promised a leak containing tens of thousands of documents that would reveal a major U.S. bank operating in an “ecosystem of corruption.” More recently, Mr. Assange said that the dump contained enough information to force the resignation of a bank CEO.

Speculation swirls that the data in question belonged to a former executive of Merrill Lynch, which merged with Bank of America in 2008. In response, BofA has reportedly assembled a “legal SWAT team” in anticipation of such a disclosure, according to Fox Business’ Charlie Gasparino.

The quesiton is, what, if anything, can such a SWAT team do? Perhaps the only clear legal  avenue for BofA — or any other bank in such a situation — will require the plaintiff to prove Wikileaks conspired with whoever leaked the documents, Joe DeMarco, former cybercrime prosecutor for New York’s Southern District, told The Observer in an email. Such a revelation would allow a bank to bring criminal charges for release of classified information or computer hacking, or civil action for interfering with a non-disclosure contract.

“If [Wikileaks is] complicit in a criminal act … you could be charged as a co-conspirator in the act itself or as an aider and abbettor,” said John Curran, former Deputy General Counsel for National Security Affairs at the FBI.

Then comes the real challenge. Even if it were proven that Wikileaks was actively encouraging a leaker, legal action against the organization itself would be fraught with international hurdles, Mr. DeMarco wrote. Although it may well be technically possible to sue Wikileaks and win, he said, “Not all foreign countries will give effect to a U.S. judgment in favor of a plaintiff.” Plus, enforcement of any claims against Wikileaks would be complicated; the organization’s mirror sites are hosted in multiple countries. And the computer servers themselves are difficult to locate, further complicating matters, Mr. DeMarco pointed out.

If Wikileaks was simply a passive recipient of the information, the bank will probably have little redress, thanks to the First Amendment. As The New York Times points out, no third party to secret documents has ever been successfully prosecuted for receiving and publishing information. This inconvenience has been frustrating U.S. prosecutors as they attempted to build a case against Mr. Assange for publishing secret State Department cables.

So if Wikileaks can’t be beaten in court, a bank’s best bet may be to win in the court of public opinion, a strategy Bank of America is clearly already attempting. That’s what the U.S. government has been trying to do. Following the outfit’s publication of secret U.S. State Department cables, Vice President Joe Biden called Mr. Assange a “high-tech terrorist,” and Secretary of State Clinton has likened the disclosure to an attack on America and a threat to the international community. Perhaps it’d be worth it for a bank to try to brand Mr. Assange as an anticapitalist subversive bent on undermining a fragile U.S. economic recovery.

Given his cavalier attitude about the impending data release — “It could take down a bank or two,” he says — that shouldn’t be too hard.

mtaylor [at] observer.com | @mbrookstaylor