UNITED STATES DISTRICT COURT WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION

IN RE: Request from Requesting State Pursuant to the Treaty Between the United States of America and the Requesting State on Mutual Assistance in Criminal Matters

No. SA-04CA0676-OG

GOVERNMENT'S RESPONSE TO MOTION TO UNSEAL

Movants Electronic Frontier Foundation ("EFF"), Urbana-Champaign Independent Media Center Foundation ("UCIMC") and XXX XXX ("XXX") have petitioned the court to unseal the documents previously filed in the above entitled and numbered cause. The United States responds herein and ask [sic] that said request be denied and for grounds would show as follows:

1. None of the Movants have standing to file the Motion to Unseal. As acknowledged by the Movants, the subponea at issue was served on Rackspace in San Antonio, Texas. The parties to the instant action are the requesting foreign country, hereinafter "requesting state", the United States goverment and the party on whom the subponea was served, Rackspace. The entities and one individual requesting the illegal unsealing are not parties and lack standing to complain of the alleged seizure. EFF and UCIMC contend they have standing as a consequence of the ruling in U.S. vs. Chagra, 701 F.2d 354 (5th Cir., 1983). Chagra, as the Court is aware, was a unique situation and the Fifth Circuit has limited its' applicability. Walker vs. City of Mesquite, 858 F.2d 1071, (Fth Cir.(Tex.) Oct 31, 1988), holding Chagra was a "unique situation" and thus not precedent for expanding standing to unanmed party members in a class action suit at 1075, footnote 1. Similarly, Movant XXX is not a party to the MLAT request. Movants state XXX received no justification nor any avenue for redress. Neither are true. XXX was told by Rackspace they received an order and were bound to comply with it. Movant XXX was offered his servers back but refused. Subsequently he demanded and was given new servers by Rackspace. As Moveants have no standing their request to unseal should be denied.

2. As further grounds for the denial of the Motion to Unseal, without waiving the forgoing, the United States would show that pursuant to Article 8 of the treaty between the United States and the requesting country, entitled "Protecting Confidentiality and Restricting Use of Evidence and Information" states in part;

"2. If deemed necessary, the Requesting State may request that the application for assistance, the contents of the request and its supporting documents, and the granting of such assistance be kept confidential".

Such a request has been made to the United States by the Requesting State. The unsealing and release of the documents therein would violate the treaty between the United States and the Requesting State. Article VI of the United States Constitution states in part:

"This Constitution, and the laws of the United States which shall be made in pursuance thereof; and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every state shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding."

As such this Honorable Court is required to uphold the confidentiality of the Requesting state and the documents must be sealed.

3. "As further grounds for the denial of the Motion to Unseal, without waving the forgoing, the U.S. would show that the sealed documents pertain to an ongoing criminal terrorism investigation. The unsealing of the documents on file in the matter would seriously jeopardize the investigation. The non-disclosure is necessitated by a compelling government interest."

Wherefor, premises considered the United States respectfully requests that this honorable Court deny the Motion to Unseal.

Respectfully submitted,

JOHNNY SUTTON UNITED STATES ATTORNEY

[signed by Don J. Calvert, Assistant United States Attorney]