[infowar.de] Indymedia: the tale of the servers 'nobody' seized

[Bodo Staron <bodo -! - staron - de>]

Infowar.de, http://userpage.fu-berlin.de/~bendrath/liste.html
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http://www.theregister.co.uk/2004/10/21/indymedia_home_office_denial/print.=
html

By John Lettice (john.lettice at theregister.co.uk)
Published Thursday 21st October 2004 13:27=C2 GMT
Nobody seized Indymedia's servers, apparently. On the 7th October
hosting company Rackspace 'acted in compliance' with a court order and
two servers belonging to Indymedia were removed from Rackspace's
premises in London.

But the denials of involvement roll in, the latest coming from UK Home
Office minister Caroline Flint, who in answer to Parliamentary
questions said: "I can confirm that no UK law enforcement agencies
were involved in the matter... In the circumstances I do not therefore
believe that it is necessary for me to make a statement."

Which we can perhaps take as meaning that whatever happened was
nothing to do with the Home Office, and you lot might as well stop
asking us about it. The Home Office's apparent lack of interest in
court orders from non-UK jurisidictions being enforced on UK soil
without the involvement of UK law enforcement agencies would however
seem a fertile area for further questions.

The existence of one US court order can be established through its
being referred to in Rackspace's terse statement about the matter. The
FBI has denied any involvement in the seizure of the servers, and
although an early Agence France Presse report said a subpoeana had
been issued at the request of Italian and Swiss authorities, the FBI
spokesman now involved claims to have been misquoted. The Register has
made enquiries about what, then, he did say, but that is unclear.
Swiss authorities meanwhile have said that no request was made, but it
appears that an order was issued in Bologna in connection with the
matter.

So if we hang onto these two court orders, we can track the process,
up to a point. A request for assistance is issued by the Bologna court
and made to the US under the terms of the US-Italy Mutual Legal
Assistance Treaty (MLAT). The US has a clutch of these in force with
various countries, and more in the works (see list, note State
Department link has stopped working
(http://library.lp.findlaw.com/articles/file/00297/002460/title/Subject/top=
ic/Criminal%20Justice_Extradition%20and%20Detainers/filename/criminaljustic=
e_2_2251)).
Essentially, an MLAT is a mechanism whereby orders issued in one of
the treaty signatories' territory can be enforced in the other.

Note that the Rackspace statement says it acted in compliance with a
court order pursuant to an MLAT, i.e., the court order is an action
that is taken as a consequence of an MLAT request to the US, and the
UK is not involved at this juncture. The text of the court order is
sealed, but again according to Rackspace's statement it was "issued
under Title 28, United States Code, Section 1782 in an investigation
that did not arise in the United States." The text of this section can
be found here,
(http://assembler.law.cornell.edu/uscode/html/uscode28/usc_sec_28_00001782-=
---000-.html)
and you'll note that it is an order pursuant to a request by a foreign
tribunal directing "that the testimony or statement be given, or the
document or other thing be produced, before a person appointed by the
court." The order is likely to have been made by the San Antonio
district court and served on Rackspace in Texas, this being where the
company is headquartered.

So we've got a US court order served in Texas, we've got a "person
appointed by the court", before whom whatever it is the order requires
must be produced, and we've got the seizure of two servers in
Heathrow, London. Whatever trail connects the two is littered with
denials, so we have to start speculating to consider the options.

The one with fewest black helicopters attached is the cockup theory.
The Bologna judge is pursuing evidence which she claims may be held on
Indymedia's servers, and makes the request for assistance to the US on
the basis that Rackspace is a US company. The district court having
discovered that the relevant servers are in fact in London, the order
is nevertheless pressed in order to trigger the handover of the
material in London to person or persons unknown (presumably the court
might know, but it might not have been the FBI). Whoever gets it hands
it back a week later.

Now we'll add a couple of black helicopters to that. It seems
perfectly conceivable, even likely (OK, it's a grey helicopter) that
anything owned by Indymedia and held by Rackspace that was within
direct US jurisdiction would have been subject to the order. No other
servers disappeared, but as was said at the time of the seizure, it
happened so fast that Rackspace had no choice but to hand over the
servers in order to comply.

Black helicopter number two would be to consider the possibility that
the Italian authorities knew damn well where the servers really were,
but chose to go via the US rather than channel it via the Home Office
because they thought they'd do better via that route. An Italian court
seeking evidence in the UK ought to use the procedures of the Home
Office's mutual legal assistance unit, and these are currently
governed by the Crime (International Cooperation) Act 2003.

Apparently reliable Italian sources indicate that the evidence
ostensibly sought was of postings connected with the FAI (Informal
Anarchist Federation) but Indymedia denies any such postings exist, or
that the FAI has ever used the Indymedia network. The 2003 Act (in
common with similar legislation in numerous countries) requires a
description of the evidence sought, justification and some form of
declaration that the evidence sought is not likely to contain
privileged information.

The servers taken did contain privileged information, including email
traffic to lawyers acting in connection with the trial of Italian
police over their activities at the Genoa G8 summit. Whether the judge
knew this, could be reasonably expected to know this, or not, the fact
became clear fairly soon after the seizures. This would be cause for
pulling the plugs on the whole process if it were being conducted
under the 2003 Act or under mutual assistance arrangements, and it
also seems likely to constitute an illegal interception under RIPA.

And if (we're still on black helicopter number two here) the Italian
request was made to the US because it was felt that it would be less
likely to be queried than if it were sent via the Home Office, then
all of this would look considerably worse.


---------------------------------------------------------------------------=
-----

We'll lay off the black helicopters for the moment and strike out for
some dry land. Caroline Flint's answer says no UK law enforcement
agency was involved, which leaves us with the question of who the
persons unknown were, where they were, what status they had, and where
the servers went for their week's vacation. The Register has asked the
Home Office for a clearer idea of the agencies it considers as being
covered by the term "law enforcement", and if we're right in presuming
that the Mutual Legal Assistance unit is included. If this turns out
to be the case, then there was definitely no request for assistance
>from either Italy or the US to the UK.

Maybe. As the UK-US MLAT includes a confidentiality clause (these are
factory-fitted), the Home Office might not be able to admit it. But if
such a secret request existed, UK law enforcement would probably have
been involved, accompanying the persons unknown, or acting for them.

So about these persons. You could see how (technically - skip
jurisdiction for now, it's maybe the fashion anyway) whatever was
wanted could be taken off a server in the UK by persons in the US. But
this didn't happen, and for some unspecified reason it was also not
possible to take it more locally, so the servers were handed
over/removed instead. This handover of physical objects appears to
have taken place in some kind of jurisdiction twilight. The FBI has no
jurisdiction in the UK, the FBI says it was not involved in the
seizure, no UK law enforcement agencies were involved.

Rackspace meanwhile says it can't comment further because "the court
prohibits" this. This would likely be under the terms of the US-Italy
MLAT, and the confidentiality clause would also be reason for the
sealing of the court order itself.

So nobody took them? Some kind of burglary, was it? Although Indymedia
has been coming under massive pressure from the authorities in Italy,
its sources there seem to be unearthing some fairly convincing stuff
concerning the Italian end of the business. This attributes the
original order as having been made by Judge Marina Plazzi in Bologna,
who is investigating FAI activities, and comes up with a nugget
regarding the servers themselves.

According to one post from Italy: "Marina Plazzi, the judge in charge
of investigations upon FAI (Informal Anarchist Federation) and
'bomb-threats' delivered to the President of the EU Commission Romano
Prodi, was ordered to acquire information about posts published on
italy.indymedia.org. The FBI took 'extreme' action in seizing the
logs, going beyond the court order. As the prosecutor did not not
validate the seizure the hardware was returned to Rackspace."

For reasons we've covered already it's unlikely that the FBI was
taking the extreme action in Heathrow, but the indication that there
was an Italian legal problem over the 'collar the lot' approach to the
seizure sounds plausible. And the seizure of privileged material would
also be a problem under Italian and EU law, so here we have the
possibility of a second cockup to add to the one we prepared earlier.
Were the servers in the hands of Italian authorities when the cockup
was discovered? And if not, whose hands were they in, and would that
be US or Italian jurisdiction? And actually who was it who pulled the
plugs (if they were really pulled)?

Maybe as the judge says whoever executed the order overdid it, but
maybe whoever filled in the request form (hello judge? Or somebody
higher up?) didn't provide a full and accurate description of the
evidence sought, and it was the requested authority (i.e., the US)
that blew the whistle when it became clear what was there.

Whatever, it should by now surely have come to the attention of the
Home Office that it all looks very like somebody else's laws have been
playing all over its jurisdiction without it knowing anything about
it. If the Home Office doesn't know what's been going on, then it
should really start finding out, shouldn't it? =AE




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