Updated August 2005
» EFF press release about unsealed documents Aug 2 2005
On October 7 2004 more than 20 Independent Media Center (IMC) websites and other Internet services were taken offline pursuant to a Commissioner's Subpoena. The Electronic Frontier Foundation (EFF) represented the interests of Indymedia a global collective of independent media organizations and thousands of journalists offering grassroots non-corporate coverage of news events. In addition EFF worked in cooperation with lawyers who represent particular Independent Media Centers all around the world.
Initially the disappearance of the Indymedia servers was shrouded in secrecy with no one willing to provide an explanation. On October 20 2004 EFF filed a motion to unseal the Indymedia documents in the United States District Court for the Western District of Texas. In the motion EFF attorneys argued that "the public and the press have a clear and compelling interest in discovering under what authority the government was able to unilaterally prevent Internet publishers from exercising their First Amendment rights." EFF argued further that secret court orders circumvent due process undermine confidence in the judicial system and deny those affected by the order any way to challenge it.
On July 20 2005 the court granted the motion and ordered the majority of the underlying documents unsealed (but with the specific URLs of the pages being investigated redacted). On August 1 2005 we received the newly unsealed documents which are listed below.
The unsealed documents confirm that the U.S. government served on Rackspace Managed Hosting a Commissioner's Subpoena issued pursuant to an April 2004 request from the Bologna (Italy) Public Prosecutor's Office. The Commissioner's Subpoena was seeking "log files in relation to the creation and updating of the web spaces corresponding to" particular URLs on the Indymedia servers.
- Court Order Unsealing Documents [PDF 184] July 20 2005
- EFF's Reply to Government's Response [PDF 39k] to Motion to Unseal. November 15 2004
- Government Response [PDF 251k] to EFF's Motion to Unseal. November 9 2004
- EFF's Motion to Unseal [PDF 79k]. October 22 2004
The Unsealed Documents
- Explaining the Italian Request [910k] 7/30/04
Memorandum of law in Support of Application for Order. US Attorney explains the Italian request. The Commissioners Subpoena to Rackspace the Italian request (in Italian) and the Treaty that regulates the request are included as exhibits.
- Italian Request for assistance (in English) [203k] 7/30/04
US Attorney requests the US District Court the appointment of a Commissioner to collect the evidence required to execute Italian request. Italian request (in English) included.
- Government requests to seal [20k] 7/30/04
US Attorney's Motion to Seal the Application for Order
- Appointment of the Commissioner and grant of the request to seal [62k] 7/31/04
Orders from the US District Judge appointing Don J. Calvert as a Commissioner and granting government Motion to Seal the Application for Order.
- Government's Response to Motion to Unseal [84k] 11/5/04
US District Attorney explains why the Government opposes the Motion to Unseal.
- Order to unseal unless significant evidence is provided [197k] 9/12/04
US District Court grants EFF motion to unseal and orders the unseal of the documents unless the Government can produce significant evidence that supports the necessity for secrecy.
- Request for more time [59k] 12/21/04
US Attorney requests 10 days to answer the US District Court and to present the evidence necessary to prove the necessity for secrecy
- Certification of the log files [27k] 12/21/04
US Attorney certificates the content of the compact disc with a copy of the Rackspace server.
- Grant of request for more time 18k 12/22/04
US District Judge order granting government's motion for extension of time to present evidence.
- Italian Government letter 26k 1/3/05
US Attorney presents a letter from the Italian Government explaining the reasons that justify the secrecy of the proceeding. The letter is not unseal.
- Requesting response from the Government [54k] 5/24/05
US District Judge order consolidating cases and requesting response from the Government in 4 weeks. The Judge explains the content of the letter from the Italian Government.
- Government response [67k] 6/23/05
US District Attorney responses the US District Judge request to response and explains that they have redacted the documents that it believes must remain sealed. It includes a list of documents and explanation of its confidential nature or not.
- EFF reply to Government response [49k] 7/1/05
Request to the US District Judge to also unseal the Government's pleadings regarding their Motion to Unseal and the Court orders regarding the same.
Questions Remaining from the Unsealed Documents
The Commissioner's Subpoena (attached to the Memorandum of Law In Support of Application for Order) only required Rackspace to produce "log files in relation to the creation and updating of the web spaces corresponding to" particular URLs. On October 7 2004 however Rackspace explained that it had "received a federal order to provide your hardware to the requesting agency." After the unsealing company spokeswoman Annalie Drusch asserted that "A Rackspace employee mistakenly used the word 'hardware' to describe the contents of a federal order."
The Commissioner's Subpoena required these log file documents produced by August 13 2004. The server however went offline on October 7 2004. According to the San Antonio Business Journal "Rene Salinas spokesman for the local FBI office says the subpoena was in fact faxed to Rackspace officials on Oct. 7."
The SABJ goes on to report that "Assistant U.S. Attorney Calvert concedes he does not recall the date that the subpoena was actually delivered to Rackspace. But he could not explain why it would have been delivered in October some two months after the Aug. 13 2004 deadline listed in the subpoena."
On October 8 2004 Rackspace issued a statement that "The court prohibits Rackspace from commenting further on this matter." However the unsealed documents do not contain a gag order; the court order authorizing the Commissioner's Subpoena only said that notice to other parties was not required.
On August 1 2005 EFF spoke with Annalie Drusch the Director of Corporate Communications for Rackspace Managed Hosting seeking comment now that the case files were unsealed. We never received a direct response. However Rackspace told CNet that:
Rackspace employees searched for the specific information
requested in the subpoena but were unable to locate this information
prior to the strict delivery deadline imposed by the FBI. In order to
comply with the mandated deadline Rackspace delivered copied drives
to the FBI. Shortly thereafter Rackspace succeeded in isolating and
extracting the relevant files responsive to the subpoena and
immediately asked that the drives be returned by the FBI. The FBI
returned the drives and it was our understanding that at no time had
they been reviewed by the FBI. The relevant files were then delivered
to the FBI.
The following is the original (October 2004) background information on the disappearance of the Indymedia servers and EFF's response.
Two Internet servers known as ahimsa1 and ahimsa2 provided space to more than 20 Independent Media Centers in the United States and around the world offering independent journalists a soapbox upon which to speak in a public forum. Independent Media Centers are autonomous portions of Indymedia a global collective of independent media organizations and thousands of journalists offering grassroots non-corporate coverage of news events. IMCs publish information often missed by mainstream media organizations and offer unique perspectives on world events. The IMC content is widely read with the two servers transmitting over 3.2 terabytes of information a month serving over 18 million page views a month.
The Ahimsa servers were hosted by Rackspace Managed Hosting a San Antonio-based Internet hosting company that provides dedicated servers to customers. Rackspace provided initially one then two dedicated servers supplying the data center hardware (servers and other devices) and Internet connectivity necessary to operate an online service but allowed the customer to directly operate the machines. The first server went online in September 2001 the second sever came online in April 2003. The servers were physically located in Rackspace's facility in London England.
Through the Ahimsa servers Indymedia IMCs had access to Internet services for news websites and an online radio server. The hosted websites included local IMCs from Western Massachusetts Andorra Brazil the Czech Republic Euskal Herria (Basque Country) Galzia Italy Poland Portugal the United Kingdom Uruguay multiple sites from France and Belgium and popular Indymedia Internet radio streams. The Internet radio streams used the domain radio.uk1.indymedia.org providing about ten streams to the public.
The servers provided email services for BLAG (Brixton Linux Action Group) syndicate.org.uk and foref.org (For Refugees) and a beta test email service at indymail.org. The servers also contained an archive of the email communications from the ahimsa techs.
In addition the servers hosted www.blagblagblag.org a website offering BLAG (BLAG Linux And GNU) a version of the GNU/Linux operating system along with technical support and forums for communicating about the software.
On or around Thursday October 7 2004 Rackspace was served with a Commissioner's Subpoena pursuant to 28 U.S.C. § 1782 and a Mutual Legal Assistance Treaty (the "Seizure Order"). A Commissioner's Subpoena is a special subpoena issued by the District Court in which the entity holding the requested information resides. Since Rackspace is based in San Antonio this would be the Court in the Western District of Texas. Ordinarily an Assistant United States Attorney for the relevant district is appointed as the Commissioner and is empowered under the statute to issue a subpoena.
While Rackspace has refused to provide a copy of the Seizure Order or even discuss its contents in an October 7 2004 email Rackspace explained that it had "received a federal order to provide your hardware to the requesting agency." The hardware was seized the same day and all of the news media and other material on the Ahimsa servers was silenced around 17:18 GMT on October 7 2004.
On October 8 2004 Rackspace further explained:
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.
Rackspace has refused to provide further explanation or even the name or contact information of a government representative with whom anyone could discuss the Seizure Order contending that the case was "under seal."
On October 12 2004 Jason Carter an Account Representative of Rackspace said that "the court order is being complied with and your servers in London will be online at 5pm GMT." Rackspace did not explain why the server was returned or provide any further explanation of why the server had been seized in the first place.
EFF has contacted the Federal Bureau of Investigation the Departments of State and Justice the U.S. Attorney's Office in San Antonio and the US District Court for the Western District of Texas in an effort to independently determine the origin of the Seizure Order but no agency has accepted responsibility.
The FBI issued a statement to the Associated Press saying that "at the request of a foreign law enforcement agency " the agency assisted in serving Rackspace with the subpoena. "Rackspace located the Indymedia records on servers in the United Kingdom. A brief interruption of Indymedia's Internet service resulted when Rackspace copied the subpoenaed records from their servers. There is no FBI or U.S. investigation into Indymedia."
An anonymous FBI source also told the AP that "There were two different requests from two different countries that are in no way connected except that both pertain to Indymedia."
The Italian Connection
On October 13 2004 Morena Plazzi a public prosecutor in Bologna Italy admitted—unofficially—that she requested Internet Protocol (IP) address log information from the Italy Indymedia server through the Mutual Legal Assistance Treaty but did not seek the seizure of the server hardware. Efforts are underway to obtain a copy of this request.
While the servers logged aggregate traffic information pursuant to the IMC policy of preserving privacy they were configured never to log the specific IP address of the computer that reads or posts news and information to IMC sites. An IP address is a unique number used by machines to refer to each other when sending information through the Internet.
In the United Kingdom Sheffield Member of Parliament Richard Alan asked a question in the House of Commons to determine what if any involvement the Home Office had with the seizure. Caroline Flint formally replied "I can confirm that no UK law enforcement agencies were involved in the matter referred to in the question posed by the hon. Member for Sheffield Hallam."
An investigation is underway to determine if Rackspace UK's actions violated the UK Data Protection Act or the Regulation of Investigatory Powers Act.
The Nantes Dispute
On Wednesday September 22 2004 the FBI contacted Rackspace regarding some images and material hosted on the Ahimsa servers by the Nantes Independent Media Center. According to Rackspace the FBI alleged that a particular article on the website nantes.indymedia.org contained personal information and threats regarding two Swiss undercover police officers. Immediately upon receipt of the inquiry through Rackspace the Ahimsa systems administrator reviewed the article on the Nantes server and determined that it contained neither threats nor names or address information finding only photographs of the officers disguised as anti-globalization protesters. Nevertheless the Swiss request was conveyed to the Nantes IMC webmasters who then digitally masked the faces of the officers in the photos.
On Friday October 1 2004 the FBI followed up with a visit to Devin Theriot-Orr the registered agent for the Seattle Independent Media Center. The agents again incorrectly alleged that the Nantes article contained personally identifying information about the Swiss officers including their home address and phone numbers. During this meeting FBI Special Agent Eric Meuller clarified that they were not contending any laws had been broken and that there was nothing wrong with the photos of the officers but were rather passing on a request from the Swiss government. Theriot-Orr informed the agents that the Seattle IMC has no authority regarding the Nantes IMC and that they should direct their request directly to the Nantes IMC.
On Tuesday October 5 2004 Jennifer O'Connell the Rackspace Acceptable Use Manager wrote to say "I have received no further communications from either the FBI or the Swiss authorities so I feel like we can close this issue." Accordingly since the faces were obscured no threats or personal information were in the article and the FBI seemed to have forgotten about it Indymedia considered the matter resolved.
While the FBI inquiry and visit suggested that the Commissioner's Subpoena could be related to Swiss concerns over the Nantes post there has been no confirmation that the Swiss government invoked the MLAT in this instance. Indeed Special Agent Eric Mueller when contacted by EFF on October 12 2004 denied any knowledge of the seizure and inquiries with the Swiss General Attorney in Généve Switzerland have not led to any confirmation from the Swiss.
EFF Statements on the Indymedia Seizure
"Secret orders silencing media should be beyond the realm of possibility in a country that believes in freedom of speech " said EFF Staff Attorney Kurt Opsahl. "EFF was founded with the Steve Jackson Games case 14 years ago and at that time we established that seizing entire servers because of a claim about some pieces of information on them is blatantly illegal and improper. It appears the government forgot this basic rule and we will need to remind them."
"If Rackspace stands behind its claim of providing 'Fanatical Support' to its customers it will go to bat for Indymedia—one of its biggest customers " said Kurt Opsahl EFF Staff Attorney. "Rackspace should also fight for its own rights and join us in challenging the gag order preventing it from sharing its side of the story."
"The feds can't pull the plug on more than 20 news websites—our modern printing presses—based on a secret proceeding at the request of a foreign government. This is a flagrant violation of the First Amendment " said Kevin Bankston EFF attorney and Equal Justice Works/Bruce J. Ennis Fellow. "As far as the Constitution is concerned Indymedia has the same rights as any other news publisher. The government can't shut down the New York Times and it can't shut down Indymedia."
"This seizure has grave implications for free speech and privacy. The Constitution does not permit the government unilaterally to cut off the speech of an independent media outlet especially without providing a reason or even allowing Indymedia the information necessary to contest the seizure " said EFF Staff Attorney Kurt Opsahl.
"When a secret order results in the unconstitutional silencing of media the public has a right to know what happened." said Kurt Opsahl EFF Staff Attorney. "Freedom of the press is an essential part of the First Amendment and our government must show it had a compelling state interest to order such an extreme intrusion to the rights of the publisher and the public."
"Silencing Indymedia with a secret order is no different than censoring any other news website whether it's USA Today or your local paper " said Kevin Bankston EFF attorney and Equal Justice Works/Bruce J. Ennis Fellow. "If the government is allowed to ignore the Constitution in this case then every news publisher should be wondering 'Will I be silenced next?'"