[Media-watch] Indymedia seizure update - 4/11/2004 - The Register

[Julie-ann Davies]

http://www.theregister.co.uk/2004/11/04/indymedia_flint_nondenial/

Indymedia server grab - Home Office knew, but isn't telling
By John Lettice (john.lettice at theregister.co.uk)
Published Thursday 4th November 2004 11:59 GMT

Almost a month after Indymedia servers in London were seized by agencies 
unknown  working for states unknown, a parliamentary answer suggests that 
the Home Office does know who seized them, and under what authority. But 
it's not telling.

The Home Office has been subjected to a steady drizzle of questions on the 
subject of Indymedia, but these have generally been answered with a denial 
of any involvement on the part of the agency the question refers to, 
followed by Caroline Flint's catchphrase: "In the circumstances I do not 
therefore believe that it is necessary for me to make a statement." 
Yesterday however John McDonnell MP scored a hit of sorts by bowling a 
question in fairly broad terms: "To ask the Secretary of State for the Home 
Department on what (a) grounds and (b) legal authority the web servers of 
the news agency Indymedia were seized on 7 October."

Flint's response this time was: "I can only confirm that no UK law 
enforcement agencies were involved in the matter. I am not at liberty to 
discuss the specific case in more detail."

Experienced watchers of Government stonewalling may consider the first part, 
which answers a question that McDonnell did not ask, as perhaps significant. 
Flint has already established this in previous answers, so it's not strictly 
necessary. The remainder isn't exactly what you'd call a full and frank 
disclosure, but it is not a denial of knowledge and/or involvement, and it's 
stronger than a refusal to comment. The Home Office would deny all knowledge 
and involvement if this were sustainable, but it's not. If the Home Office 
didn't know about foreign court order being enforced on UK soil, then as we 
pointed out here 
(http://www.theregister.co.uk/2004/10/21/indymedia_home_office_denial/) its 
lack of knowledge would be an issue.

Presumably we are therefore intended to take Flint's answer as meaning that 
the Home Office does know. Why, though, is the Home Office not at liberty to 
discuss the case in more detail?

This would be the kind of construction that might be used to avoid 
confirming or denying the use of the US-UK Mutual Legal Assistance Treaty 
(MLAT), which has a non-disclosure clause written into it. In addition, the 
Home Office declines to comment on any MLAT-related matter. It is therefore 
possible that this is an
early (even a first?) sighting of the Home Office not telling the 
legislature about the use of an MLAT, while attempting not to tell it why 
it's not telling it at the same time. There is, one hopes, an obvious, 
inherent instability to shady treaties of this variety.

If an MLAT was not used we could still reasonably postulate some kind of 
informal or semi-formal MLAT-type arrangement. Rackspace handed over the 
servers under a US court order, the Home Office had some knowledge of what 
was happening and green-lighted the procedure, and the Home Office is in 
some way
bound to secrecy. The US-UK MLAT incidentally provides for proceeding on the 
basis of a verbal agreement, documentation to follow, so there's some scope 
for
it to blur into 'buddies' deals which could have an MLAT effect without even 
leaving a sketchy MLAT audit trail.

Also yesterday, Flint said the Secretary of State "did not receive any 
representations from the Federal Bureau of Investigations" in the matter. 
It's conceivable that somebody else might have received such 
representations, but as the FBI has denied involvement we can probably rule 
this out with a reasonable degree of certainty. Flint's denial of the 
involvement of UK law enforcement agencies also rules out most varieties of 
cop, but not the Home Office itself, and not security agencies which do not 
have direct enforcement powers in the UK. It occurs to The Register that 
hosting companies faced with court order from outside national jurisdiction 
might do themselves and their customers a favour if they dug their heels in 
for long enough to force the local uniform branch to show up with some kind 
of warrant. It might take a bit of nerve, but it would surely greatly 
enhance the audit trail.

The next stage in the slow unpicking will most likely be the Electronic 
Frontier Foundation's action in the US. 
(http://www.eff.org/Censorship/Indymedia/) The EFF has filed a motion in the 
Western Texas US District Court to unseal the seizure order. The motion 
itself notes that the FBI, the DoJ, the US Attorney's Office in San Antonio 
and the District Court itself all deny responsibility for the order, but 
points out that the US legislation under which the ghostly order was issued 
only authorises "the district court of the district in which a person 
resides or is found" to order the production of documents or things. As the 
order was served on Rackspace in San Antonio, a court in the Western 
District of Texas must, logically, have issued it.

If the EFF motion is successful, it should reveal more concrete details of 
the process, and would perhaps provide some pointers for future questions 
from UK MPs. It should also expose the international MLAT regime to long 
overdue scrutiny, because although we do not know for certain that a US-UK 
MLAT was used, we know one was, by the country that originated the request 
(Italy remains the most likely here).

It's possibly instructive at this juncture for us to provide a brief 
run-down of a slightly earlier FBI matter involving Indymedia, because it 
provides some measure of how flimsy and miscommunicated the evidence that 
could trigger a shutdown can be, these days. There was a post on the 
Indymedia Nantes site involving pictures of Swiss police, which led to the 
following Rackspace trouble ticket to Indymedia (22nd September 2004): " We 
have received a complain from the FBI regarding some images and material 
hosted on your server on the page below. 
http://nantes.indymedia.org/article.php3?id%20article=3910 [link now dead, 
there are several mirrors to be found] Please remove this material 
immediately and we understand that it contains personal information 
regarding two Swiss police officers as well as threats against them. 
Regards, Jennifer O'Connell, Rackspace AUP."

There was no personal information or threat on the page. We've heard it 
alleged that "Il n'y a pas que le Carpacio comme plat qui se mange froid!" 
is a threat but this bizarre French saying simply suggests revenge, in the 
sense that 'carpaccio is not the only dish that's eaten cold.' In any event, 
as it is said in the context of "Perhaps there are other things that this 
inspector will never forget," the sense is that it is the policeman who may 
be doing the threatening.

Both of them however look a hell of a lot jollier than anything we ever saw 
looking into a camera at demos in our mispent youth. They clearly do things 
differently in Switzerland. There's something on a related board posting 
(link also now dead) that could be interpreted as personal details, but 
unless the chubbier one is indeed called Mike and lives near a pizzeria, we 
suspect this of having been a joke. A further post then menaces the other, 
"the little shit on the right" with what might happen (unspecified) if the 
poster ever meets him in the street, but that's it for threats, and it's not 
much unless you want to lock up every mouthy juvenile on the internet.

It's followed by a heavily sarcastic post on the subject of "you courageous 
heroes of the revolution... you and your culinary metaphors", and the 
remainder of the thread then morphs (national stereotypes? We got 'em) from 
G8 aggro to humorous exchange of said metaphors.

So what was that all about? Well might you ask, but it seems to have been 
enough to prompt an FBI approach to Rackspace 'on behalf of the Swiss 
police', and that approach seems to have been enough for Rackspace to go 
into take-down mode. There's a fuller parsing of this ridiculous incident 
here, (http://argentina.indymedia.org/news/2004/10/228965.php) and a Google 
on 'Carpacio comme plat qui se mange froid' will find you uncensored 
versions
practically everywhere, except for at Indymedia. ®