EFF Challenges Secret Court Order

Texas - Today Electronic Frontier Foundation (EFF) attorneys filed a motion to unseal a secret US federal court order that 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. The motion seeks to discover which agencies and governments are responsible for the seizure in order to hold them accountable. In their motion, EFF attorneys argue that "the public and the press have a clear and compelling interest in discovering under what authority the government was able unilaterally to prevent Internet publishers from exercising their First Amendment rights." They argue further that secret court orders circumvent due process, undermine confidence in the judicial system, and deny an avenue for redress.

"When a secret order results in the unconstitutional silencing of media, the public has a right to know what happened," said Kurt Opsahl, EFF Staff Attorney. "Freedom of the press is an essential part of the First Amendment, and our government must show it had a compelling state interest to order such an extreme intrusion to the rights of the publisher and the public."

Citing a gag order, Rackspace has not revealed the contents of the seizure order, the requesting agency, or even confirmed the identity of the court that issued it. Apparently requested by an unidentified foreign government, the secret order was served to San Antonio-based Rackspace Managed Hosting, which hosts IndyMedia's servers. The seizure took offline more than 20 IMC websites and more than 10 streaming radio feeds. So far, government agencies in the US, including the Federal Bureau of Investigation, the Departments of State and Justice, and the US Attorney's Office in San Antonio, have refused to take responsibility for the incident. Prosecutors in Switzerland and Italy have admitted pursuing investigations related to Indymedia articles but denied requesting the seizure.

"Silencing Indymedia with a secret order is no different than censoring any other news website, whether it's USA Today or your local paper," said Kevin Bankston, EFF attorney and Equal Justice Works/Bruce J. Ennis Fellow. "If the government is allowed to ignore the Constitution in this case, then every news publisher should be wondering, 'Will I be silenced next?'"

EFF's motion to unseal was filed in the federal court in the Western District of Texas, where EFF believes the secret court order originated.

Contacts:

Kevin Bankston
Attorney, Equal Justice Works / Bruce J. Ennis Fellow
Electronic Frontier Foundation
bankston [at] eff.org

Kurt Opsahl
Staff Attorney
Electronic Frontier Foundation
kurt [at] eff.org