I have a few quick and tentative thoughts on the Indymedia server seizure story that Eugene discusses below.
First, it is important to recognize that this is an Italian and Swiss investigation, not a U.S. investigation. U.S. officials are involved only because the U.S. is obligated to help the Italians and Swiss under international treaties known as Mutual Legal Assistance Treaties. These treaties say that when one country is investigating a felony crime in their country and evidence is located in a second country — not uncommon in Internet-related cases — the second counrty must help the first obtain the evidence so long as the conduct under investigation would be a crime in the second country as well. For example, if someone in the U.S. runs an illegal business using computer servers in Italy, U.S. investigators can request legal assistance from the Italians to help gather evidence and send it to the United States for use at trial. This case is the reverse: it is a Swiss and Italian investigation, and the Swiss and Italians requested that U.S. officials help them gather evidence in the U.S.
U.S. officials still must comply with the First and Fourth Amendment, as well as other laws; they can only obtain the needed court order if doing so would be allowable under United States law for an equivalent domestic investigation. Given that teams of DOJ career lawyers screen and review MLAT requests before they are processed, the chances are quite high that this was all done correctly under United States law.
Second, it remains unclear whether the FBI ordered the server owner to hand over its hardware, and it seems quite unlikely that the FBI ordered any websites shut down. This story suggests that the FBI obtained a subpoena requesting information on behalf of the Italian and Siwss authorities from Rackspace, a U.S.-based web-hosting service with a branch in the UK that has Indymedias as one of its clients. We don’t know if the subpoena merely requested that Rackspace give the FBI specific information about how its servers had been used, or whether it was actually a request to hand over the server within a specific period of time. (The latter seeems rather unlikely to me, but you never know.) All we know is that Rackspace complied with the subpoena by handing over servers located in the UK, apparently to UK authorities (although that’s unclear, too.) It seems that some websites were temporarily disabled when Rackspace switched servers.
More when the facts become clearer…
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