More re Indymedia -
sent to John Young’s Cryptome mailing list
Message-ID: <4918801a0410091806728a832@mail.gmail.com>
Date: Sat, 9 Oct 2004 18:06:24 -0700
From: Greg Broiles
To: John Young
Subject: Re: [Cryptome] Indymedia Raid
Cc: cryptome@cryptome.org
In-Reply-To:
On Sat, 09 Oct 2004 20:03:03 -0700, John Young wrote:
> Greg,
>
> I understand the action taken in the US, but was not
> a similar action required directly in the UK for physical
> property located there? Or are these remote-controlled
> actions capable of reaching into secondary countries?
> I know that Rackspace is responsible for the UK sub,
> but does not UK law require a grounds for any action
> on its territory?
I don't know what UK law requires - from a US law perspective, I would
expect the US company to be in hot water with a US judge if it didn't
cooperate with US legal process, even if the subject of the order
happened to be outside the territorial US.
> Second, could Rackspace not have contested the order, or
> is such an order from a "Commissioner" not contestable?
> Or did Rackspace just roll over?
>
> Then, perhaps Rackspace contested and can not reveal that.
Rackspace could have contested the subpoena in US court if they chose
to; the order appointing the Commissioner is a final appealable order,
so this could have even gone up the appeals chain to the Court of
Appeals and been offered to the US Supreme Court, if the parties had
been inclined to do so.
I don't know if Rackspace did contest the order, and the record is
sealed (or difficult to find online), or if Rackspace declined.
> Did you find any evidence that Rackspace had a reason to
> go along beyond the court order, say, government business
> or problems with the government.
I don't know of anything one direction or the other - I recall that
Verio was relatively independent in its judgement regarding legal
process, until they were purchased by a Japanese company, and the US
government raised the issue that Verio's facilities might then be
outside the reach of US law enforcement/intelligence subpoenas and
process, and Verio then expressed a willingness to be as cooperative
as other ISP lap-dogs.
> Peculiar that Rackspace does not make an effort to
> explain why its custormer's interest was not paramount.
I would not be surprised if the subpoena itself directs Rackspace to
keep the existence or contents of the subpoena (and the items(s)
produced in response) confidential - I am not certain that the
"commissioner" would have a defensible basis for making such a demand,
especially absent an order from a real US judge or magistrate allowing
for such a secrecy order.
On the other hand, in these days of the Patriot Act, it's hard to be
sure that there hasn't been some obscure legislation passed allowing
the issue of (probably unconstitutional) secrecy orders.
My hunch is that there isn't a defensible secrecy order in place here,
since the FBI and Rackspace have been willing to talk to the press -
in other cases (such as the ACLU suit re National Security Letters)
the parties have acted much more circumspect in even discussing the
existence of an active case.
I think there are two aspects to this case which are of interest: the
appropriateness of the seizure/disclosure, and the interruption of
service to the Indymedia servers.
So far, I haven't heard anything which suggests that the disclosure
was legally incorrect, although Rackspace could probably have resisted
it more vigorously.
On the other hand, I think it's harder to justify failing to restore
the machine to service after the FBI got what they asked for.
Assuming that the FBI asked for the actual, physical hard disk, it
still seems that Rackspace could/should have restored Indymedia's
server from backup, allowing them to continue to function while the
FBI continued with their work. In particular, I note that Rackspace's
website at
seems to suggest that all Rackspace servers are centrally backed up,
such that it should have been possible for them to restore Indymedia
to service within a few hours.
Given what's now known about this incident, I'm having a hard time
imagining what the foreign government(s) wanted as evidence from the
hard disk(s). It's not like there's a lot of room to dispute whether
or not the photos in question were being served from that machine.
Rather, I suspect that the purpose of this action was to disrupt
operation of the Indymedia sites, which is certainly not what Congress
intended when they enacted 28 USC 1782 - nor even what was likely
contained in the application to the US district judge/magistrate for
designation of the AUSA as a commissioner.
Nothing in this message is intended as legal advice.
--
Greg Broiles, JD, EA
gbroiles@gmail.com (Lists only. Not for confidential communications.)
Law Office of Gregory A. Broiles
San Jose, CA