parrhesia.com » Search and seizure

    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