Eff Representing Journalists In Server Seizure

Lynne Kiesling

The Electronic Frontier Foundation will represent journalists with content on servers seized by the FBI on behalf of a foreign government. From their press release:

Earlier this month, the FBI made informal requests to both Rackspace and Indymedia to remove an Indymedia news story that included photos of undercover Swiss investigators posing as anti-globalization activists. At the time, the FBI admitted that the posting did not violate US law.

EFF has contacted the FBI to demand Indymedia’s illegally seized servers be returned and is preparing for legal action in the event that negotiations with the FBI fail. EFF is also calling on Rackspace to challenge the government’s illegal seizure. “If Rackspace stands behind its claim of providing ‘Fanatical Support’ to its customers, it will go to bat for Indymedia–one of its biggest customers–and demand that the FBI return the seized Internet servers,” said Kurt Opsahl, EFF staff attorney. “Rackspace should also fight for its own rights and challenge the gag order preventing it from sharing its side of the story.” A federal court in New York City recently found a similar gag order unconstitutional in Doe v. Ashcroft, the ACLU’s challenge to a secret PATRIOT Act subpoena served against an Internet service provider.

“The FBI can’t pull the plug on more than 20 news websites — our modern printing presses — based on a secret proceeding at the request of a foreign government. This is a flagrant violation of the First Amendment,” said Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis Fellow. “As far as the Constitution is concerned, Indymedia has the same rights as any other news publisher. The government can’t shut down the New York Times, and it can’t shut down Indymedia.”

This step adds some information to previous posts by Glenn Reynolds at Instapundit, Orin Kerr at Volokh, and Eugene Volokh at Volokh. If EFF is willing to enter into this, it suggests that the move might transcend your standard information exchange under treaty. But I’m not a lawyer, so I’m interested to hear more informed thoughts.

EFF also notes a striking similarity between this case and its first:

The Indymedia seizure bears a striking resemblance to EFF’s very first case, Steve Jackson Games v. US Secret Service. In that case, the Secret Service seized the hardware and software of Steve Jackson Games, an Austin, Texas-based computer game publisher. That seizure, which shut down an Internet bulletin board and email server in addition to disrupting the publisher’s business, was found to be an illegal violation of the publisher’s rights.

It also bears a striking resemblance to one of the pivotal scenes in Cryptonomicon.

This bears watching … the Google News search on the topic will help with that.