This story about the seizure of some Indymedia servers is intriguing and potentially troubling, depending on the relevant facts, but maddeningly vague about those facts (though the vagueness might well be because the Web hosting company is quiet, not because the BBC knows stuff it isn’t telling):
The FBI has shut down some 20 sites which were part of an alternative media network known as Indymedia.
A US court order forced the firm hosting the material to hand over two servers in the UK used by the group. . . .
The reasons behind the seizure are unclear but the FBI has reportedly said the action was taken at the request of Italian and Swiss authorities. . . .
The servers affected were run by Rackspace, a US web hosting company with offices in London.
It said it had received a court order from the US authorities last Thursday to hand over the computer equipment at its UK hosting facility. . . .
It said it was responding to an order issued under the Mutual Legal Assistance Treaty. Under the agreement, countries assist each other in investigations such as international terrorism, kidnapping and money laundering[.]The reasons behind the action against the Indymedia websites are unclear. . . .
“Indymedia had been asked last month by the FBI to remove a story about Swiss undercover police from one of the websites hosted at Rackspace,” said [Indymedia] in a statement.
“It is not known, however, whether Thursday’s order is related to that incident since the order was issued to Rackspace and not to Indymedia.” . . .
A FBI spokesperson told the AFP news agency that it was not an FBI operation, saying the order had been issued at the request of Italian and Swiss authorities. . . .
The seizure has sparked off protests from journalist groups. . . .
The UK site of Indymedia is back up and running but several of the other 20 sites affected are still offline. . . .
Here are a few possibly important points, though based on guesses.
1. It sounds to me like the order involved was “turn over evidence,” not “stop operating.” The servers seem to have been seized because they supposedly contain evidence relevant to some investigation. There doesn’t seem to be any legal requirement that the sites be shut down, though of course they’ll be down for some time while the hosting company (or some other company, if this one doesn’t want to be involved any more) puts the sites — presumably from backups or cached versions — on some other server.
2. It also sounds like the order was a subpoena, not a search warrant (or some special order that’s closer to a subpoena than to a search warrant). In the U.S., police searches of private property must comply with the Fourth Amendment, which often requires a warrant based on probable cause to believe that the property contains evidence of a crime. But subpoenas — orders that someone testify, or turn over documents — do not require probable cause. They can be issued based simply on a showing that they are reasonably likely to yield relevant information, directly or indirectly.
You can be called to testify (even to testify about First Amendment activity, such as a defendant’s conversations with you) without a showing of probable cause. Likewise, you or a business can be called to turn over material in your possession without such a showing.
I suspect that this case involves a subpoena rather than a search warrant because I doubt the FBI would have any authority to execute search warrants in the U.K. I therefore think that they delivered the order to the company, the company complied, and the FBI hauled away the stuff. [UPDATE: My friend and coblogger Orin Kerr points to this article, which makes clear that the order was indeed a subpoena, not a search warrant.]
3. In the U.S., there are special First Amendment restrictions on seizures of constitutionally protected material, developed in the obscenity context but applicable elsewhere. To quote the Supreme Court in Fort Wayne Books v. Indiana (1989),
[T]his Court has repeatedly held that rigorous procedural safeguards must be employed before expressive materials can be seized as “obscene.” . . . [T]he Court invalidated large-scale confiscations of books and films, where numerous copies of selected books were seized without a prior adversarial hearing on their obscenity. In those cases, and the ones that immediately came after them, the Court established that pretrial seizures of expressive materials could only be undertaken pursuant to a “procedure ‘designed to focus searchingly on the question of obscenity.'”
We refined that approach further in our subsequent decisions. . . . [T]he Court noted that “seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding.” As a result, we concluded that until there was a “judicial determination of the obscenity issue in an adversary proceeding,” exhibition of a film could not be restrained by seizing all the available copies of it. The same is obviously true for books or any other expressive materials. While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, the publication may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing.
Thus, while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved.
4. Nonetheless, it’s not completely clear what exactly this would mean here. First, the classic distinction between (A) seizing a copy of a book for evidence purposes and leaving the store free to distribute other copies and (B) seizing the whole stock because you think it’s all likely to be contraband doesn’t quite apply here: The seizure is for evidentiary purposes, but it’s likely to also interfere with Indymedia’s ability to distribute its material, albeit likely only for a few days, if the material is properly backed up. It thus seems to fall into a gray area between the seizure of one book and the seizure of all copies of that book (though maybe it’s close to the seizure of the movie theater’s reel of film, which is likely the only copy in its possession, but which likely could be replaced in a few days). Second, it’s not clear whether the rules I cited above, which were developed in the context of searches, also apply to subpoenas.
5. It’s also not completely clear how these rules apply to subpoenas outside the U.S.; I would presume that a U.S. court order served on a U.S. company would be governed by the Fourth Amendment even if the property involved is overseas, but I can’t be positive. I would also presume that the order would also be constrained by the First Amendment (see below).
6. Finally, the most important question is the vaguest of all: What exactly is the underlying justification for the subpoena? If there’s reason to believe that the Web server contains evidence of, say, illegal money laundering activity, and that the best way of getting this evidence is getting the entire server rather than just having the company turn over the records related to one particular account, the subpoena seems eminently justifiable.
On the other hand, if the relevant information is obviously in just one particular place on the disks, the normal procedure would be to have the company turn over copies of those records. I doubt that AOL, for instance, should be asked to turn over a whole computer (or array of computers) simply because there’s a subpoena for one subscriber’s records. A subpoena that asks for the whole server
Likewise, if the subpoena is for evidence of what would in the U.S. be constitutionally protected speech — e.g., if some country is subpoenaing the computer to get evidence of anti-Islamic or neo-Nazi speech — then I don’t think a U.S. court should be allowed to order it seized. (There may be some uncertainty about that because the information is not in the U.S., see item 5 above; but my sense is that the First Amendment would apply to U.S. court orders, and U.S. courts’ enforcement of foreign requests, aimed at U.S. citizens or businesses even if the order is to be enforced outside the U.S. There is some caselaw, for instance, barring U.S. courts from enforcing foreign court judgments that are based on what would in the U.S. be constitutionally protected speech; not exactly what’s going on here, but close in some respects.)
7. Finally, I think the Privacy Protection Act of 1980 probably wouldn’t apply; as best I can tell, it has generally been read as applying only to government searches of media offices, not subpoenas. See, e.g., State v. Salsbury, 129 Idaho 307 (1996) (“Basically, the act implements a ‘subpoena first’ rule which requires, with a few exceptions, that a law enforcement officer use a subpoena first, rather than a search warrant to obtain evidence from any person planning to publicly communicate information.”). It’s true that here the subpoena would be followed by a government search of the servers, but it seems to me that the Privacy Protection Act would likely still not apply — but I can’t claim to be an expert on the Act.
In any case, those are my tentative thoughts on what seems an interesting — and potentially highly controversial — story. I would love to hear (1) more information on the factual details behind the story, if anyone knows them, and (2) more information on legal questions from any lawyer or law professor who is an expert on the field (lay speculation about the way things ought to be is probably not going to be that helpful).
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