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Ahimsa Seizure - Possible UK Legal Implications

This is somewhere to collect the public (ie not a place for internal Indymedia legal discussions), legal information that is ImcUk specific, for more general information see these wiki pages: [ AhimsaOverview | AhimsaLegal | AhimsaLegalSuggestions ] and for the legal situation in the US see the EFF Indymedia Server Seizures page.

This page is being updated by people on imc-uk-legal.

Facts

Things that there is no argument over .

Rackspace contract

The contract between Jeff and Rackspace is a UK contract. UK contracts are subject to UK law.

Rackspace are a UK company, these are their details at Companies House:

Name & Registered Office:
RACKSPACE MANAGED HOSTING LIMITED
RUSSELL SQUARE HOUSE
10-12 RUSSELL SQUARE
LONDON
WC1B 5LF
Company No. 03897010

Status: Active

Date of Incorporation: 20/12/1999

Country of Origin: United Kingdom

Company Type: Private Limited Company

Nature of Business (SIC(92)):
7487 - Other business activities

Accounting Reference Date: 31/12

Last Accounts Made Up To: 31/12/2002 (SMALL)

Next Accounts Due: 31/01/2005

Last Return Made Up To: 20/12/2003

Next Return Due: 17/01/2005

Last Members List: 20/12/2003

Previous Names:

Date of change Previous Name
14/02/2001 RACKSPACE.COM LIMITED

Branch Details
There are no branches associated with this company.

Oversea Company Info
There are no Oversea Details associated with this company. [1]

[1] Oversea Company Information:

The Companies Act contains two regimes requiring an Oversea Company to register in Great Britain - the Branch Registration and the Place of Business regimes.

The details displayed must be provided by an Oversea Company if it registers or re-registers under the Branch regime.

For Oversea Companies which are registered under the branch regime and are not incorporated in an EEA Member State, the following information is required:

  • The law under which the company was incorporated.
  • The address of its principal place of business in its country of incorporation.
  • The company's objects.
  • The amount of the company's issued share capital.
  • The company's accounting period and the time allowed for the public disclosure of its audited accounts under its parent law, if applicable.

The contract with rackspace is (this needs double checking) based on their Master Service Agreement which states:

10 Law and Disputes
10.1 This Agreement shall be governed by English law.

11.4 A third party won't have any rights under this agreement

One can get copies of documents submitted to UK Companies House from Companies House in person or for a fee online or from UK Data which includes some not available from Companies House online.

20-10-2004 Notice of claim to extension of period allowed for laying and delivering accounts - oversea business or interests.

18-08-2004 Notice of change of directors or secretaries or in their particulars.

UK Government

Several written questions have been tabled in the House of Commons by MPs some of them have been answered...

Answered questions

In response to questions from two MPs the UK Government said on 20 Oct 2004 that "that no UK law enforcement agencies were involved", this is taken from Hansard

Mr. Allan: To ask the Secretary of State for the Home Department which UK law enforcement agencies were involved in the seizure of computer disks containing material published by Indymedia from the London offices of Rackspace. [192111]

Caroline Flint [holding answer 18 October 2004]: I can confirm that no UK law enforcement agencies were involved in the matter referred to in the question posed by the hon. Member for Sheffield, Hallam.

Jeremy Corbyn: To ask the Secretary of State for the Home Department under what powers, and acting under what information, officials of his Department seized web services belonging to Indymedia; and if he will make a statement. [192814]

Caroline Flint: I can confirm that no UK law enforcement agencies were involved in the matter referred to in the question posed by my hon. Friend. In the circumstances I do not therefore believe that it is necessary for me to make a statement.

And on 27 Oct 2004 in they answered a question from John McDonnell:

John McDonnell: To ask the Secretary of State for the Home Department what representations he has received from foreign governments with regard to the seizure of computer equipment from the independent news agency Indymedia on 7 October. [193714]

Caroline Flint: The Secretary of State did not receive any representations from foreign governments in this matter.

Richard Allan asked this further question which was answered on 2 Nov 2004:

Mr. Allan: To ask the Secretary of State for the Home Department what recent discussions he has had with US law enforcement agencies concerning the seizure of material from UK-based internet hosting providers; and if he will make a statement. [191627]

Caroline Flint: I can confirm that my right hon. Friend the Home Secretary has had no discussions in regards to the matter referred to in the question posed by the hon. Member. In the circumstances I do not therefore believe that it is necessary for me to make a statement.

In a letter to Glenda Jackson MP Caroline Flint has said:

Unfortunately, I am not in a position to comment on this particular matter, but I can provide general information. It is standard Home Office policy neither to confirm nor deny the existance or receipt of a mutual legal assistance request. However, where the UK has received a valid request, we will seek to execute it within the framework of our domestic law. This will include being provided with sufficient evidence to justify the actions sought.

John McDonnell had a question answered on 3 Nov 2004:

John McDonnell: To ask the Secretary of State for the Home Department on what (a) grounds and (b) legal authority the web servers of the news agency Indymedia were seized on 7 October. [193709]

Caroline Flint: I can only confirm that no UK law enforcement agencies were involved in the matter. I am not at liberty to discuss the specific case in more detail.

David Taylor had a question answered on the 3rd Nov 2004:

David Taylor: To ask the Secretary of State for the Home Department what recent representations he has received from the Federal Bureau of Investigation concerning the activities of UK-based customers of the US company Rackspace; and if he will make a statement. [193230]

Caroline Flint: The Secretary of State did not receive any representations from the Federal Bureau of Investigations in this matter. In the circumstances I do not therefore believe that it is necessary for me to make a statement.

Richard Allan has the following question answered on the 8th Nov 2004:

Mr. Allan: To ask the Secretary of State for the Home Department whether prior notification was received by his Department concerning the seizure of the Indymedia servers on 7 October. [194455]

Mr. Blunkett [holding answer 28 October 2004]: I can confirm that the Home Office received no prior notification in relation to this matter.

Lynne Jones recieved the following answer on 11 November:

Lynne Jones: To ask the Secretary of State for the Home Department whether he authorised the seizure of web servers belonging to Indymedia. [191015]

Caroline Flint: I can confirm that no UK law enforcement agencies were involved and therefore, no authorisations needed.

David Blunkett wrote a letter to Michael Howard on the 8th November 2004:

While I cannot comment in detail on the reasons behind the US action I hope that I can clarify the situation for him. Rackspace,which is based in the USA,sought to comply with a US court order simply by ordering their United Kingdom subsidiary to access the servers,which they duly did. There was no UK involvement in this process.

I am confident that any action taken by the US authorities in this case would be in acordance with US law. I also understand from the Indymedia website that their hardware has now been returned. In the circumstances, I do not believe it is appropriate for an investigation to take place.

Caroline Flint wrote a letter to an MP's constituent on the 22nd December 2004:

Pursuant to a US Commissioner's subpoena, Rackspace US accessed its servers in London from the United States. The order of the US court was not enforced in the United Kingdom.

Unanswered questions

A question from John McDonnell was never properly answered:

John McDonnell (Hayes and Harlington) (Lab): On 7 October, under the authority of the mutual legal assistance treaty and, we believe, at the instigation of the FBI, agents visited the offices of Indymedia and removed its computer servers. Indymedia is an international news agency that has extensively covered investigations into the war and the Bush and Berlusconi regimes. May we have a statement next week to explainon what authority the action was taken, what representations foreign Governments made and the justification for the action?

Mr. Hain: I am not aware of the details of the matter but the Home Secretary will have noted my hon. Friend's points.

These questions from John McDonnell have not been answered:

John McDonnell (Hayes & Harlington): To ask the Secretary of State for the Home Department, what correspondence his Department had with foreign agencies prior to the seizure of web servers from the office of Rackspace; from which agencies correspondence was received; and what authorisations were granted to these foreign agencies. (195833)

John McDonnell (Hayes & Harlington): To ask the Secretary of State for the Home Department, whether foreign agencies are entitled to raid UK premises (a) with and (b) without his Department's authorisation. (195834)

Lynne Jones's question was due to be answered on 16th November 2004:

Lynne Jones (Birmingham, Selly Oak):To ask the Secretary of State for the Home Department, pursuant to the Answer of 11th November, Official Report, column 892W, on Indymedia, under what legal provisions seizure of private property in the UK by foreign law enforcement agencies without authorisation from UK law enforcement can be carried out.

Lynne Jones asked again on 1st December 2004:

245 Lynne Jones (Birmingham, Selly Oak):To ask the Secretary of State for the Home Department, with reference to the seizure of servers belonging to Indymedia, what statutes govern the seizure of private property in the UK by foreign law enforcement agencies without authorisation from UK law enforcement agencies.

Petition

26 MPs have signed the following petition:

'this house expresses deep concern at the seizing of web servers belonging to he independent media organisation Indymedia; request that the Home Secretary explains under what authority their wholly independent news service was prevented from functioning; and expresses its disquiet at this attack on freedom of speech via the internet'.

European Parliment Questions

Phillip Whitehead MEP asked a question in the European Parliment about the seizures

Speculation

There has been speculation about possible legal implications from a number of sources.

Richard Allan

Richard Allan has had some RIPA thoughts:

Many thanks to those who commented on my earlier post regarding the scope on interception of email under the Regulation of Investigatory Powers Act (RIPA). This raises again a potential inconsistency with the Police and Criminal Evidence Act (PACE) powers that came out at committee.

RIPA is very strict in saying that interceptions of voice calls or internet traffic must be authorised by a Secretary of State warrant. PACE defines the ability of the Police to search for and seize material they need as evidence in a case. It has a much lower threshold for authorisation as it is for routine Police operational matters. Tony Hutchings has helpfully referred to the NTL case which precisely looks at the interaction of the two laws. And Clive Feather illustrates the implications of this.

As more material which is of evidential value is held online then we can expect to see PACE seizures increase. These will in many instances involve “collateral damage” as disks and servers are taken which contain information belonging to people who are not the direct subjects of the investigation. RIPA does not seem to provide any safeguards in these circumstances. It may be that cases can be taken under the Human Rights Act to try and demonstrate that invasions of privacy were not “necessary” or “proportionate” in the context of a specific investigation.

Richard Allan has speculated:

The best way to now draw out more information would be for Indymedia to work with their lawyers to make complaints against Rackspace. These may be criminal complaints to the Police if they believe there is a case to allege theft or breach of other criminal law. Or they may be civil for damage to their business, breach of contract etc. In the context of any such action they would be asking the UK courts to require disclosure from Rackspace of documents relevant to the seizure. They would then have to test the relative strength of UK court orders to disclose against US gagging orders.

And he has also said:

Indymedia may have both civil and criminal complaints to bring against them if they have acted illegally. The nature of any such action will depend on their legal advice.

And also thoughts on any RIPA implications:

Phil raises an interesting question in a comment to the last post. He asks if emails taken from a server are not more like taking letters from your house using a search warrant than intercepting communications which would come under the RIPA law.

Having checked the text of the RIPA Act again it seems that three things need to be demonstrated for it to kick in. The interception has to be “intentional", “without lawful authority” and “in the course of transmission". The first two points will only be established in the context of the Indymedia case when we know who requested the disks, what they were looking for on them, and what legal cover they think they had for it.

The question of when an email is “in the course of transmission” is one which I am not sure has been fully tested in the courts yet (any lawyers please advise). An IMAP server in particular is both a part of the transmission system and a storage system. I do not think it can be entirely excluded from the protections of RIPA or that would seriously weaken the measures in a way which was not, I believe, intended.

The question is whether mails on the server are like letters at the local postal sorting office and therefore fully protected as being in the public the transmission system or like letters in a filing system at home that would not be covered by RIPA and could be seized on a normal search warrant. The reality is that both analogies from the paper world could apply. Technology as ever challenges traditional definitions.

It may be that there is already case law in this area that would clarify the matter. If not, then it will sadly be through cases like this that we may come to define what constitutes an email “transmission” system for the purposes of RIPA protections.

Spy Blog

Spy Blog has speculated:

The questions about whether or not Rackspace's UK subsidiary have acted illegally under United Kingdom law, by intercepting "electronic communications" (including emails), disrupting an electronic communications system, export of personal data outside of the European Union to the USA without permission, breach of copyright etc. still need to be answered.

Without the protection of a properly authorised UK law enforcement warrant, which was obviously not obtained in this case, Rackspace UK could be sued for breach of confidentiality by the Indymedia systems administrators with whom they have a legal contract.

The Register

The Register has speculated:

The servers taken did contain privileged information, including email traffic to lawyers acting in connection with the trial of Italian police over their activities at the Genoa G8 summit. Whether the judge knew this, could be reasonably expected to know this, or not, the fact became clear fairly soon after the seizures. This would be cause for pulling the plugs on the whole process if it were being conducted under the 2003 Act or under mutual assistance arrangements, and it also seems likely to constitute an illegal interception under RIPA.

The laws being referd to here are the Crime (International Co-operation) Act 2003 and the Regulation of Investigatory Powers Act 2000.

Slashdot

This comment on Slashdot speculates about human rights:

were any UK laws (eg the Data Protection Act 1984 or the Regulation of Investigatory Powers Act 2000) broken? Are there any UK cyber law experts on Slashdot with any suggestions...?

The most important one, I suspect, is the Human Rights Act, 1998:

PART II
THE FIRST PROTOCOL
ARTICLE 1
PROTECTION OF PROPERTY

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

So, they can't confiscate property unless some other law specifically allows it. I'm not sure what that law would be.

This refers to the Human Rights Act 1998.

Laws

Acts of Parliment

Case Law

Topic revision: r19 - 09 Jun 2009, DaMish
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