Original URL: http://www.theregister.co.uk/2004/10/21/indymedia_home_office_denial/

Indymedia: the tale of the servers 'nobody' seized

Home Office now also in denial

By John Lettice

Posted in Media, 21st October 2004 13:27 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). 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, 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? ®

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