“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…
…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.”(1)
“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…”(1)
Further develpments suggest nothing beyond a subpoena for relevant evidence in an investigation, and, anyway, one correspondent’s e-â€”noted at Volokh’s siteâ€”suggests that the the easiest way to provide information required by a subpoena would likely be to “…just shut down the boxes, pull them, and give them to the Feds… non-production servers could be re-assigned and automated restores queued.” Pull the hard drives, send ’em off, done with the Feds, back to business.
Law enforcement can and does subpoena information all the time. Heck, private parties do so in civil law suits. If the information is on a company’s servers and its integrity is best assured by surrendering the “documents” themselves, I see no First Amendment isssue. Happens all tyhe time, routinely, in a myriad of cases. So, this was apparently a first under the MLAT.
I’ve seen it said by an email correspondent, “…there are no first amendment implications in server seizures in Britain” where the seizures too place, but that is irrelevant. There would have been no First Amendment issues here, either, and in fact there were not: the company the information was subpoenaed from, Rackspace, a U.S.-based web-hosting service, did have the information on servers in the U.K. Again, so? If it had been a stack of hardcopy accounting records that was subpoenaed, that were stored in the U.K. they still would have had to produce them.
Where’s the beef? The Rackmount servers involved were surrendered in an investigation of Indymedia? Even real press (although there’s darned little of that left, it seems) must comply with duly issued subpoenas (or face consequences), and Indymedia skates the edge of legitimate jounalism anyway, never quite making it onto the legitimate side (well, perhaps a little closer to legit than Al-Jazeerah or the old Pravda… about on a par with CBS, i.e., no credibility with anyone who has two active brain cells. Hmmm… that about sums up moveon.org wackos, the DNC and those who plan on spending Christmas in Cambodia with sKerry… ).
Another [yawn] …
Let’s see what shakes out before crying wolf. So far, it seems everything’s been done by the book, and if the book’s not to someone’s taste, there’s always the ballot box.
Or a tinfoil hat