EFF :: Indymedia seizure documents unsealed

Initially, the disappearance of the Indymedia servers was shrouded in secrecy, with no one willing to provide an explanation. On October 20, 2004, EFF filed a motion to unseal the Indymedia documents in the United States District Court for the Western District of Texas. In the motion, EFF attorneys argued that "the public and the press have a clear and compelling interest in discovering under what authority the government was able to unilaterally prevent Internet publishers from exercising their First Amendment rights." EFF argued further that secret court orders circumvent due process, undermine confidence in the judicial system, and deny those affected by the order any way to challenge it.

On July 20, 2005, the court granted the motion -- http://www.eff.org/Censorship/Indymedia/order_unsealing.pdf -- and ordered the majority of the underlying documents unsealed (but with the specific URLs of the pages being investigated redacted). On August 1, 2005, EFF received the newly unsealed documents, which are listed below:

The Unsealed Documents

(PDF format)

• Explaining the Italian Request [910k] 7/30/04
  Memorandum of law in Support of Application for Order. US Attorney explains the Italian request. The Commissioners Subpoena to Rackspace, the Italian request (in Italian) and the Treaty that regulates the request are included as exhibits.
• Italian Request for assistance (in English) [203k] 7/30/04
  US Attorney requests the US District Court the appointment of a Commissioner to collect the evidence required to execute Italian request. Italian request (in English) included.
• Government requests to seal [20k] 7/30/04
  US Attorney's Motion to Seal the Application for Order
• Appointment of the Commissioner and grant of the request to seal [62k] 7/31/04
  Orders from the US District Judge appointing Don J. Calvert as a Commissioner and granting government Motion to Seal the Application for Order.
• Government's Response to Motion to Unseal [84k] 11/5/04
  US District Attorney explains why the Government opposes the Motion to Unseal.
• Order to unseal unless significant evidence is provided [197k] 9/12/04
  US District Court grants EFF motion to unseal and orders the unseal of the documents unless the Government can produce significant evidence that supports the necessity for secrecy.
• Request for more time [59k] 12/21/04
  US Attorney requests 10 days to answer the US District Court and to present the evidence necessary to prove the necessity for secrecy
• Certification of the log files [27k] 12/21/04
  US Attorney certificates the content of the compact disc with a copy of the Rackspace server.
• Grant of request for more time 18k 12/22/04
  US District Judge order granting government's motion for extension of time to present evidence.
• Italian Government letter 26k 1/3/05
  US Attorney presents a letter from the Italian Government explaining the reasons that justify the secrecy of the proceeding. The letter is not unseal.
• Requesting response from the Government [54k] 5/24/05
  US District Judge order consolidating cases and requesting response from the Government in 4 weeks. The Judge explains the content of the letter from the Italian Government.
• Government response [67k] 6/23/05
  US District Attorney responses the US District Judge request to response and explains that they have redacted the documents that it believes must remain sealed. It includes a list of documents and explanation of its confidential nature or not.
• EFF reply to Government response [49k] 7/1/05
  Request to the US District Judge to also unseal the Government's pleadings regarding their Motion to Unseal and the Court orders regarding the same.

Questions Remaining from the Unsealed Documents

The Commissioner's Subpoena (attached to the Memorandum of Law In Support of Application for Order) only required Rackspace to produce “log files in relation to the creation and updating of the web spaces corresponding to” particular URLs. On October 7, 2004, however, Rackspace explained that it had "received a federal order to provide your hardware to the requesting agency."

The Commissioner's Subpoena required these log file documents produced by August 13, 2004. The server, however, went offline on October 7, 2004.

On October 8, 2004 Rackspace issued a statement that "The court prohibits Rackspace from commenting further on this matter.” However, the unsealed documents do not contain a gag order; the court order authorizing the Commissioner's Subpoena only said that notice to other parties was not required.

On August 1, 2005, EFF spoke with Annalie Drusch, the Director of Corporate Communications for Rackspace Managed Hosting, seeking comment now that the case files were unsealed. We are awaiting a response.