The US government has responded (PDF) to EFF's motion to unseal the mysterious government order that resulted in the seizure of two servers hosting more than 20 Independent Media Center (IMC) websites. The reply, which argues that the order should remain secret, contains details that suggest that the order may have originated in Italy.
In the reply, the government contends that the seizure order should be kept sealed because (1) EFF and our Indymedia clients lack standing to contest the seizure, (2) the request for confidentiality came from an unnamed foreign government pursuant to a Mutual Legal Assistance Treaty (MLAT), trumping the Bill of Rights, and (3) disclosure would imperil "an ongoing criminal terrorism investigation."
EFF strongly disagrees. The public and the press have a clear and compelling interest in discovering under what authority the government was able unilaterally to prevent Indymedia publishers from exercising their First Amendment rights. Even if there is an ongoing investigation as the government claims, continued secrecy is not justified because it is now public knowledge that the request was most likely made by Italy. If the order is unsealed, anyone who could be "tipped off" to the Italian investigation will already have been tipped off. Nor is there any US investigation that could be jeopardized; as the FBI has repeatedly stated, the order was not part of any federal investigation.
In addition to arguing that the order should be kept sealed, the government has for the first time admitted that the order was actually issued by a particular court, providing both a case name and number. While the government refuses to identify the requesting foreign government by name, the brief quotes specific language from a MLAT, citing a particular code section. The code section cited matches with the structure of the MLAT treaty with Italy, one of the countries suspected of initiating the request. It does not track the language of the MLAT with the other prime suspect, Switzerland.
EFF will file a brief responding to the government's opposition and expects the court to rule on the motion once the briefing is concluded.
For detailed background information on the seizure, check out our Indymedia timeline.