[Media-watch] More on Indy Media Seizure
david at milwr.freeserve.co.uk
Sun Oct 10 14:03:19 BST 2004
8 October 2004. Ms. Drusch responds for Rackspace:
Subject: RE: Media Inquiry on Indy Media
Date: Fri, 8 Oct 2004 13:45:30 -0700
From: "Annalie Drusch" <adrusch at rackspace.com>
To: "John Young" <jya at pipeline.com>
All I am able to provide is a statement we've prepared:
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.
For additional information on the MLAT, please visit
Director, Corporate Communications
Rackspace Managed Hosting
Excerpt on the MLAT from Findlaw:
MUTUAL LEGAL ASSISTANCE IN CRIMINAL MATTERS TREATIES (MLATs) and OTHER AGREEMENTS
Criminal Cases Mutual Legal Assistance in Criminal Matters Treaties: Mutual Legal Assistance in Criminal Matters Treaties (MLATs) are relatively recent development. They seek to improve the effectiveness of judicial assistance and to regularize and facilitate its procedures. Each country designates a central authority, generally the two Justice Departments, for direct communication. The treaties include the power to summon witnesses, to compel the production of documents and other real evidence, to issue search warrants, and to serve process. Generally, the remedies offered by the treaties are only available to the prosecutors. The defense must usually proceed with the methods of obtaining evidence in criminal matters under the laws of the host country which usually involve letters rogatory. See "Questions" below.
MLAT Treaties in Force:
I. The United States has nineteen Mutual Legal Assistance Treaties (MLAT) currently in force: Argentina, Bahamas, Canada, Hungary, Italy, Jamaica, Korea, Mexico, Morocco, Netherlands, Panama, Philippines, Spain, Switzerland, Thailand, Turkey, United Kingdom (Cayman Islands), United Kingdom, Uruguay.
8 October 2004. J. writes:
http://www.truthout.org/docs_04/100904W.shtml quotes a Rackspace statement
which appears to answer some of these questions. Reproduced below:
Rackspace Statement Regarding Indymedia
By Annalie Drusch
Director, Corporate Communications
Rackspace Managed Hosting
Friday 08 October 2004
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.
Based on this Rackspace statement, the basis of the raid does not appear to be the photos of Swiss undercover police below, which do not appear to relate to "international terrorism, kidnapping and money laundering," unless one of these crimes has been stretched mightily.
"A Commissioner's subpoena" does not make clear whether it is from a US commissioner or one in another country. Administrative subpoenas can be issued by many US government departments; they are the lowest level of subpoenas and do not require court action. US District Court Judge Victor Marerro in a recent decision described them:
JOHN DOE; AMERICAN CIVIL LIBERTIES
UNION; and AMERICAN CIVIL LIBERTIES
-- against --
JOHN ASHCROFT, in his official capacity
as Attorney General of the United
States; ROBERT MUELLER, in his official
capacity as Director of the Federal
Bureau of Investigation; and MARION
BOWMAN, in his official capacity as
Senior Counsel to the Federal Bureau of
1. Administrative Subpoenas
The most important set of statutes relevant to this case are those authorizing federal agencies to issue administrative subpoenas for the purpose of executing the particular agency's function. Ordinary administrative subpoenas, which are far more common than NSLs, may be issued by most federal agencies, as authorized by the hundreds of applicable statutes in federal law. For example, the Internal Revenue Service (IRS) may issue subpoenas to investigate possible violations of the tax code,43 and the Securities Exchange Commission (SEC) may issue subpoenas to investigate possible violations of the securities laws.44 More obscure examples include the Secretary of Agriculture's power to issue subpoenas in investigating and enforcing laws related to honey research,45 and the Secretary of Commerce's power to issue subpoenas in investigating and enforcing halibut fishing laws.46
43 See 26 U.S.C. § 7602(a).
44 See 15 U.S.C. § 78u(b).
45 See 7 U.S.C. § 4610a(b).
46 See 16 U.S.C. § 773i(f) (2).
There is a wide body of law which pertains to administrative subpoenas generally. According to the Government's central theory in this case, those standing rules would presumably also apply to NSLs [National Security Letters], even if not so explicitly stated in the text of the statute. Where an agency serves a court order to enforce a subpoena against a resisting subpoena recipient, courts will enforce the subpoena as long as: (1 ) the agency's investigation is being conducted pursuant to a legitimate purpose, (2 ) the inquiry is relevant to that purpose, (3 ) the information is not already within the agency's possession, and (4) the proper procedures have been followed.47 The Second Circuit has described these standards as "minimal."48 Even if an administrative subpoena meets these initial criteria to be enforceable, its recipient may nevertheless affirmatively challenge the subpoena on other grounds, such as an allegation that it was issued with an improper purpose or that the information sought is privileged.49
47 See United States v. Powell, 379 U.S. 48. 57-58 (1964); Gimbel v. Fed. Deposit Ins. Corp. (In re Gimbel), 77 F.3d 593. 596 (2d Cir. 1996).
48 See United States v. White, 653 F.2d 107, 111 (2d Cir. 1988); see also Endicott Johnson Corp. v. Perkins, 317 U.S. 501, 509 (1943) (stating that courts must enforce administrative subpoenas unless the evidence sought is "plainly... irrelevant to any lawful purpose of the aqency"); United States v. Contruction Prods. Research. Inc., 73 F.3d 464. 471 (2d Cir. 1996).
49 See Reisman v. Caplin, 375 U.S. 440, 449 (1964).
Unlike the NSL statutes, most administrative subpoena laws either contain no provision requiring secrecy, or allow only for limited secrecy in special cases. For example, some administrative subpoena statutes permit the investigating agency to apply for a court order to temporarily bar disclosure of the inquiry, generally during specific renewable increments or for an appropriate period of time fixed by the court, where such disclosure could jeopardize the investigation.50
50 See 12 U.S.C. § 3409(b) (providing for a court-issued non-disclosure order, in renewable 90-day increments, where an authorized Government agency subpoenas financial records); 15 U.S.C. § 78u (h) (4) (A) (providing for a court-issued non-disclosure order, in renewable 90-day increments, in SEC investigations); 18 U.S.C. § 2705(b) (providing for a court-issued non-disclosure order, "for such period as the court deems appropriate," where an authorized Government agency subpoenas stored electronic records) ; 18 U.S.C. § 3486 (a) (6) (A) (providing for a court-issued non- disclosure order, in renewable 90-day increments, in investigations of health care fraud or crimes involving exploitation of children).
8 October 2004
Cryptome has sent this inquiry to Rackspace.com on the FBI raid on Indy Media. Specific information on the raid and its basis is welcomed.
Email adrusch at rackspace.com
To: adrusch at rackspace.com
Date: 10 Oct 2004 2:59 PM EST
Subject: Media Inquiry on Indy Media
Dear Ms. Drusch,
We operate Cryptome.org, an online news website.
Could you provide detailed information on Rackspace cooperation
with governmental authorities to remove Indy Media equipment?
What was the form of the order and/or request to Rackspace?
Was it a court order, a subpoena, a letter, or a verbal request.
If verbal, was it by telephone or by person; who made the
verbal request and who at Rackspace responded.
What was the origin and statutory authority for the order/request?
Did the order/request have a confidentiality provision, and,
if so, what statutory authority was given for that provision?
What was the duration for holding the equipment, and what
was the statuatory authority?
Can you provide copies of official materials served on
Rackspace and your responses?
Your information will be published on Cryptome.org.
Thanks very much,
8 October 2004. Thanks to A.
This provides information on the FBI confiscation of Indy Media servers in the UK yesterday:
I am sending the URL and translation. Please copy the mirror page ASAP, as it might not last long.
Here is how Indymedia.org passed along the first message from the ISP to take the post down. Below that is the translation of the original post to English -- pretty innocuous. Below that is the URL.
> administering ahimsa server in London <ahimsa-tech a lists.indymedia.org>
> Organization: Indymedia
> To: ahimsa-tech a lists.indymedia.org, imc-legal a lists.indymedia.org
> I just got this trouble ticket from Rackspace (the ISP hosting
> the server that hosts Nantes):
> Wed Sep 22 10:59:56 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 dead; Cryptome mirror below.]
> Please remove this material immediately and we understand that
> it contains personal information regarding two Swiss police
> officers as well as threats against them.
> Jennifer O'Connell
> Rackspace AUP
Photographs of 2 police officers (G8 unit)
GENEVA post-G8: Videos, photographs and testimonies; All is set to track law-breakers and hooligans. A carefully planned work continued today by two inspectors, which has led to 200 arrests so far.
The G8 police force unit had been dissolved in December 2003; however, it took up service again, in smaller numbers -- two inspectors.
These inspectors view films and photographs received from informers and from other police officers.
They come to the streets of Geneva where they plan on finding "law-breakers/hooligans."
They take new photographs -- perhaps to make a database of activists because they think that they can be the future "law-breakers/hooligans" of future riots in Geneva?
As one of the 2 inspectors says to another: "I saw two of my colleagues being lynched during meetings again OMC, in 1998 (tells an inspector) I will be never able to forget."
It is not the only thing which the police officer will not forget! Because "Il n'y a pas que le Carpacio comme plat qui se mange froid!" (A French expression. The idea is "the memories are not forgotten" or "resentments are not forgotten.")
END OF TRANSLATION
At the following URL there is a copy of the Nantes Indymedia post 3910:
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