Was seizure of Indymedia in London unlawful or UK-USA government collude?

[Guest guest]

http://www.statewatch.org/news/2004/oct/04uk-usa-indymedia.htm

 

UK-USA

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. "

 

UK-USA Treaty on Mutual Legal Assistance in criminal matters (pdf)

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.

 

Documentation

 

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

filed 11.10.04Statewatch News online | Join Statewatch news e-mail

list | Download a free sample issue of Statewatch bulletin

 

Statewatch does not have a corporate view, nor does it seek to create

one, the views expressed are those of the author. Statewatch is not

responsible for the content of external websites and inclusion of a

link does not constitute an endorsement.

[Guest guest]

Hello,

 

to ensure that the police serves the people and not rich or powerful

interest groups it should be controlled by structures serving the

people. The governments nowadays are far away from this.

No politican should have a say in tasks concerning the police. It

cannot be that the president of the USA decides who is the leader of

the FBI.

 

Within the FBI and other national policeorganisations should be

independant people controlling the actions of agents concerning

human rights.

Only protesting when there is something wrong abviously leaves many

undesirable policeactions in the dark.

 

Randolf

 

 

, " califpacific "

<califpacific> wrote:

>

>

> http://www.statewatch.org/news/2004/oct/04uk-usa-indymedia.htm

>

> UK-USA

> 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. "

>

> UK-USA Treaty on Mutual Legal Assistance in criminal matters (pdf)

> 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.

>

> Documentation

>

> 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

> filed 11.10.04Statewatch News online | Join Statewatch news e-mail

> list | Download a free sample issue of Statewatch bulletin

>

> Statewatch does not have a corporate view, nor does it seek to

create

> one, the views expressed are those of the author. Statewatch is not

> responsible for the content of external websites and inclusion of a

> link does not constitute an endorsement.