Rt. Hon David Blunkett MP
Home Secretary
The Home Office
50 Queen Anne’s Gate
London SW1H 9AT
UK

Vienna, 20 October 2004

Your Excellency,

The International Press Institute (IPI), the global network of editors, leading journalists and media executives in over 120 countries, condemns the seizure by the British authorities of two Web servers used by an Internet media organisation.

Based on information provided to IPI, on 7 October, Rackspace Managing Hosting (RMH), an American Web hosting company with offices in Uxbridge, Middlesex, received a court order instructing it to hand two Web servers over to the British authorities.

The Web servers are used by Indymedia, an international media network that describes itself as “a network of collectively run media outlets for the creation of radical, accurate and passionate tellings of the truth.” With more than 140 Web sites around the world, Indymedia operates without centralised editorial control and encourages users to freely post messages and articles.

RMH, which operates 21 Indymedia Web sites, subsequently complied with the court order causing the immediate closure of the Web sites maintained on the servers. Fortunately, some of the Web sites were able to come back online within 24 hours, while others faced more severe problems, including worries over the retrieval of their media archives.

The hosting company later issued a statement saying that, in complying with the order, RMH was “acting as a good corporate citizen and… cooperating with international law enforcement authorities.” On 13 October, the servers were returned, but no explanation was offered for their removal.

Since the day of the seizure, there has been confusion about the reasons for the court order and the identity of those who requested it. In its statement, on 8 October, RMH said it was “acting in compliance with a court order pursuant to a Mutual Legal Assistance Treaty.” Contrary to claims that the Federal Bureau of Investigation (FBI) had initiated the seizure, a claim denied by the FBI, the hosting company said that the “investigation did not arise in the United States.” It also said the court prohibited “Rackspace from commenting further.”

Although the facts are still far from clear, it now appears that Italian investigating Judge Marina Plazzi ordered the raid after being instructed to examine various postings on one of Indymedia’s Web sites. The judge apparently made an application under a Mutual Legal Assistance Treaty (MLAT) signed between the United States and Italy in 1982. By the terms of an MLAT, a country agrees to assist another in investigations relating to such matters as international terrorism, kidnapping and money laundering.

RMH was then issued with a Commissioner’s subpoena under Title 28, United States Code, Section 1782, which provides assistance to foreign and international tribunals. As the Web servers were operated by RMH in the United Kingdom, it is likely that the United States passed on the request via an MLAT signed with the United Kingdom in 1994. The British authorities then seized the servers.

IPI believes that the seizure has considerable ramifications for other media organisations operating around the world, and that it represents a disturbing attempt by the authorities in a number of countries to distinguish between traditional media organisations and those on the Internet.

Of primary concern is the fact that Indymedia was neither informed of the reasons for the seizure nor told of those who had instigated it. Fundamental to any judicial system is the principle that those involved in a criminal procedure should have an opportunity to defend themselves against their accusers. Moreover, IPI strongly believes that an individual can only do so if he is fully informed of the allegations ranged against him. In the present case, Indymedia was not informed and, therefore, denied the opportunity to defend itself.

Furthermore, the matter of establishing a defence is especially important in cases where questions of press freedom and freedom of expression arise. As a media organisation, Indymedia should have been able to argue before a court that there were important reasons why it should not have to reveal its sources or be co-opted into providing information to the authorities. Once again, this opportunity was denied to Indymedia because of the suddenness and speed with which the seizure was carried out.

IPI is also worried that it is the very nature of an Internet media organisation that allowed the authorities to carry out the seizure in this fashion. With the servers owned and operated by a separate non-media company, the authorities chose the path of least resistance and sought the information from the hosting company. However, this action contrasts with the way in which the authorities would handle a similar situation with established media.

In cases where a newspaper or broadcaster was involved it is highly unlikely that the authorities would have initiated the process by going to the newspaper’s printers or to where the broadcaster’s transmission aerials was sited. Instead, the media organisation would have been approached. Again, this was not done in the case of Indymedia.

At a time when both Internet media and Internet users are facing considerable pressure around the world, particularly from states who have much to fear from the free flow of information, IPI believes that the present case involving countries that normally uphold press freedom has set a worrying precedent not only in distinguishing between certain types of media, but also in the way they are treated by the authorities.

The result is that any media organisation that has a Web site should be deeply concerned that the same or similar procedures could be applied against them.

Another disturbing feature of the case is the use of MLATs. While IPI acknowledges the importance of international assistance in the area of crime, the system is open to abuse. IPI is particularly concerned that “fishing expeditions” for information held by the media will be conducted at the behest of third-party-countries without proper regard to whether the information called for is necessary or crucial to an investigation.

With the above in mind, IPI calls on the government to hold an investigation into the Indymedia case and to conduct wide-ranging discussions on how to safeguard press freedom for Internet media organisations and to ensure that there is no repetition in the future.

We thank you for your attention.

Kind regards,

Johann P. Fritz
Director