28 March 2012
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Was the seizure of Indymedia's servers in London unlawful or did the UK government collude?
- "A trail that started in Switzerland and Italy has now ended fairly and squarely in the lap of the UK Home Secretary to justify"
Tony Bunyan, Statewatch editor, comments:
"Rackspace may be a US company but Rackspace in London is subject to UK law not US law. If they took down and handed over Indymedia's servers simply on the basis of a US subpoena communicated to them this would not be lawful in the UK.
However it seems more likely that the US subpoena was the subject of a request for mutual legal assistance from the US Attorney General to the UK Home Secretary under the MLA Treaty. It would be for the Metropolitan Police, probably accompanied by the FBI, to enforce the request and take possession of the servers.
This begs the questions: Why did the Home Office agree? What grounds did the USA give for the seizure of the servers? Were these grounds of a "political" nature? Has the Home Office requested that the servers be returned? What does this action say about freedom of expression and freedom of the press?
A trail that started in Switzerland and Italy has now ended fairly and squarely in the lap of the UK Home Secretary to justify."
On Thursday 7 October a US subpoena was issued ordering the London office of Rackspace (a US company) to take down and hand over Indymedia's web servers which it hosted.
An FBI spokesman, Joe Parris, told AFP (link) that: "It is not an FBI operation. Through a legal assistance treaty, the subpoena was on behalf of a third country". The subpoena he confirmed had been issued at the request of Swiss and Italian authorities. He further said that there was no US investigation but that the agency had cooperated under the terms of an international treaty on law enforcement.
On Friday 8 October Rackspace put out the following statement:
"In the present matter regarding Indymedia, Rackspace Managed Hosting, a U.S. based company with offices in London, is acting in compliance with a court order pursuant to a Mutual Legal Assistance Treaty (MLAT), which establishes procedures for countries to assist each other in investigations such as international terrorism, kidnapping and money laundering. Rackspace responded to a Commissioner's subpoena, duly issued under Title 28, United States Code, Section 1782 in an investigation that did not arise in the United States. Rackspace is acting as a good corporate citizen and is cooperating with international law enforcement authorities. The court prohibits Rackspace from commenting further on this matter."
The third countries are Switzerland and Italy. In a statement Indymedia said it: "had been asked last month by the FBI to remove a story about Swiss undercover police from one of the websites hosted by Rackspace". It is not known what grounds the Italian authorities used, though the government has been hostile to Indymedia ever since its coverage of Genoa in 2001. This follows attempts to shut down Indymedia sites in the USA as well, see: FBI Secret Service (link)
The list of affected 20 sites include Ambazonia, Uruguay, Andorra, Poland, Western Massachusetts, Nice, Nantes, Lilles, Marseille (all France), Euskal Herria (Basque Country), Liege, East and West Vlaanderen, Antwerpen (all Belgium), Belgrade, Portugal, Prague, Galiza, Italy, Brazil, UK, part of the Germany site, and the global Indymedia Radio site.
How could this happen in the UK?
Accepting the version presented by the FBI spokesman the trail seems to be that Swiss and Italian authorities sought the help of US authorities to shut down offending Indymedia sites. Rackspace then "responded" to a US subpoena - this response was to take off the air and hand Indymedia's servers to the FBI or their representative. The effect of this was not only to take Indymedia off the air but would allow them access to all the files held.
The clue as to the legal basis for this action by the London-based Rackspace company is their statement that this was:
"in compliance with a court order pursuant to a Mutual Legal Assistance Treaty (MLAT)"
There are a number of legal bases under which this could have been undertaken in the UK. The most likely one is the "Treaty with the United Kingdom on Mutual Legal Assistance in criminal matters" between the UK and the USA which entered into force on 2 December 1996: Full-text of UK-USA MLA Treaty (pdf). The other possible relevant legislation is the UK's Crime (International Cooperation) Act 2003 (link). The EU-US agreement on Mutual Assistance in judicial cooperation is not yet in force (and has yet to be ratified by the US Congress and Senate).
The most likely legal basis for the action is the1996 UK-USA "Treaty between the Government of of the United Kingdom of Great Britain and Northern Ireland and the Government of the United States of America on Mutual Legal Assistance in Criminal Matters with exchange of Notes" (which entered into force on 2 December 1996 and was published in the UK as Cm 3546 - this version is not available but the USA version of the same Treaty is available, see above).
This UK-USA MLAT sets out specific legal procedures for putting into effect requests for mutual legal assistance. Article 1 covers requests for "executing requests for searches and seizures" and for providing documents and evidence. Article 2 sets out that each party (UK and USA) has to establish "Central authorities" - in the USA it is the Attorney General and in the UK it is the Home Secretary. All requests for mutual legal assistance or responses to them from the other party have to go through these channels. Indeed there is in the UK Home Office a Mutual Legal Assistance Unit through whom all requests are channelled. Article 3 says requests can be refused if the offence referred to is "of a political character". Article 4 says that all requests must set out: the name of the authority making the request (eg: the US Attorney General), the subject matter, a description of the evidence requested, the identity of the person from who the evidence is sought (eg: in this case Rackspace), and a "precise description.. of the articles to be seized".
Article 5 says that the Home Office will "take whatever steps it deems necessary to give effect to the request" and that: the "central authority" (the Home Office) shall: "facilitate the participation in the execution of the request of such persons as are specified in the request" (eg: the FBI accompanying the Metropolitan Police).
Article 7 means that the Home Office may not admit that a request from the USA had been received. Article 7.1 says: "The Requested Party [the UK] shall, upon request, keep confidential any information which might indicate that a request has been made or responded to".
Article 14 covers "Search and seizure". Under this article the requested party (the UK Home Office) must execute the request for seizure of any article (eg: servers) "if the request includes information justifying such action under the laws of the Requested Party"(ie: UK law).
Article 15 says that any article seized has to be returned by the Requesting Party (ie: the USA) unless the Requested Party (the UK) "waives the return of the documents or articles" - it will be interesting to know what position the Home Office has taken.
1. Indymedia press release, 8 October 2002 (link)
2. AFP report (link)
3. Background from Indymedia: FBI Secret Service (link)
4. "Treaty with the United Kingdom on Mutual Legal Assistance in criminal matters" between the UK and the USA which entered into force on 2 December 1996: Full-text of UK-USA MLA Treaty (pdf)
4. International Federation of Journalists (IFJ) statement on FBI seizure of Indymedia servers in London: IFJ statement (pdf)
5. The Register, 11 October 2004
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