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EFF Continues Push for Access to Secret Court Order

Government Claims Need for Secrecy, Rebuffs Call for Open Access
For Immediate Release: Tuesday, November 16, 2004

Contact:
Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
 bankston@eff.org
+1 415 436-9333 x126
Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
 kurt@eff.org
+1 415 436 9333 x106

San Antonio, TX - Today the Electronic Frontier Foundation (EFF) filed a reply brief in a federal court in Texas supporting its motion to unseal a secret court order. That order had led to the seizure of two servers hosting several websites and radio feeds belonging to Indymedia, a global collective of Independent Media Centers (IMCs) and thousands of journalists.

EFF filed its reply after the United States Attorney's Office in San Antonio, Texas, filed an opposition brief urging the federal court to refuse EFF's request to unseal. The opposition brief argued that secrecy was required to protect "an ongoing criminal terrorist investigation" and that the confidentiality provisions of a Mutual Legal Assistance Treaty (MLAT) trumped the rights of Indymedia in this case.

This marks the first time that the federal government has formally admitted to the secret order's existence. In its reply brief, EFF reminded the government that treaties are limited by the Bill of Rights, including the First Amendment right of access to court proceedings.

On October 7, the federal government secretly seized Indymedia's servers from San Antonio-based Rackspace Managed Hosting. Issued at the request of a foreign government, the seizure order resulted in more than 20 IMC websites and 10 streaming radio feeds being taken offline. Neither Rackspace nor the government has formally identified the foreign country that initiated the request, but language quoted in the government's refusal of EFF's first request matches a US treaty with Italy. Morena Plazzi, a deputy public prosecutor in Bologna, admitted that she requested server logs from Indymedia, but denied requesting a seizure.

"There are serious questions about whether the government or Rackspace overreached in responding to Italy's request," said Kurt Opsahl, EFF Staff Attorney. "The public needs to see the order so we can understand what went wrong and take steps to prevent this unconstitutional silencing of protected speech from happening again."

"The government's brief tacitly admits Italy issued the order, and the Italian government admits it sought information from Indymedia's servers," said Kevin Bankston, EFF Attorney and Equal Justice Works/Bruce J. Ennis Fellow. "By keeping the order secret, the government appears to be trying to hide serious procedural errors that led to the seizure, rather than legitimately protecting the secrecy of a 'terrorism' investigation."

EFF reply brief:
 http://www.eff.org/Censorship/Indymedia/20041115_Indymedia_Reply.pdf

Government opposition brief:
 http://www.eff.org/Censorship/Indymedia/20041109_indymedia_govt_response.pdf

Text of the US-Italy MLAT:
 http://www.usextradition.com/italy_mlat.htm

Background on the case:
 http://www.eff.org/Censorship/Indymedia/

For this release:
 http://www.eff.org/news/archives/2004_11.php#002103

About EFF
The Electronic Frontier Foundation is the leading civil liberties organization working to protect rights in the digital world. Founded in 1990, EFF actively encourages and challenges industry and government to support free expression and privacy online. EFF is a member-supported organization and maintains one of the most linked-to websites in the world at  http://www.eff.org/

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www.eff.org/news/archives/2004_11.php#002103