There still seems to be a lot of confusion on this matter, not helped (purposely?) by Government statements, so let me try and clarify what we appear to know.
The Government's responses to questions re: Indymedia Server Seizure, specifically that "no UK law enforcement agencies were involved" (20 Oct) and that "the Home Office received no prior notification" (8 Nov) would seem to rule out the use of the US-UK MLAT.
The Government's responses to questions re: Indymedia Server Seizure, specifically that "no UK law enforcement agencies were involved" (20 Oct) and that "the Home Office received no prior notification" (8 Nov) would seem to rule out the use of the US-UK MLAT.
With this in mind, Caroline Flint's statement, on 3 Nov, "I am not at liberty to discuss the specific case in more detail." could mean
a) some other law prevents her commenting or
b) she has been ordered not to comment by her superiors,
as could her statement, in letters to MP's, that "I am not in a position to comment in detail on this particular matter" which could also mean that she doesn't know anything, but one would hope that the Minister responsible for international crime would be better informed.
Even the MLAT doesn't (AFAIK) make US court orders apply in the UK, rather the UK authorities would have to apply for a UK court order, but there is nothing to suggest that such an order exists or was served on Rackspace UK. Statements by Rackspace, and the Home Office refer to a US subpoena or US court order.
So the evidence is that Rackspace UK responded to a US subpoena, which had no validity in the UK. So they effectively chose to conceal from their customer (Indymedia) the details of what was going on, and chose to hand over it's customer's hardware / data to someone (who they have refused to identify).
As others have already noted, Rackspace UK may have committed offences by it's actions. It would seem sensible for Indymedia to get legal advice as to:
a) what measures could be taken by Indymedia to force Rackspace UK to explain exactly what happened and who they handed the hardware/data to
b) what laws Rackspace UK is likely to have broken so that we may put pressure on the authorities to investigate and prosecute them
I believe measures should be taken against Rackspace UK in parallel with the attempt to unseal the court order in the US, as I can't see that anything contained in the court order could excuse any unlawful actions by Rackspace UK.
Regarding the Government's policy of neither confirming nor denying the existence of a MLAT request, this goes further than the US-UK MLAT requires, as Article 7 of that treaty states:
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1. The Requested Party shall, upon request, keep confidential any information which might indicate that a request has been made or responded to. If the request cannot be executed without breaching confidentiality, the Requested Party shall so inform the Requesting Party, which shall then determine the extent to which it wishes the request to be executed.
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Therefore, the Requested Party is only obliged to conceal the existence of a Request if the Requesting Party asks it to do so. Even then, if the Requested Party is unable to execute the Request without breaching confidentiality (such as obtaining a UK court order, which I would expect would necessitate disclosing the Request) and has advised the Requesting Party of this and been asked, nonetheless, to proceed, then the Requested party is free to acknowledge the receipt of a Request.
The Government can fulfill it's treaty obligations by adopting a policy whereby they acknowledge the receipt of Requests where confidentiality is NOT requested or has been waived as described above, and continue to neither confirm nor deny the existence of a Request at all other times.
a) some other law prevents her commenting or
b) she has been ordered not to comment by her superiors,
as could her statement, in letters to MP's, that "I am not in a position to comment in detail on this particular matter" which could also mean that she doesn't know anything, but one would hope that the Minister responsible for international crime would be better informed.
Even the MLAT doesn't (AFAIK) make US court orders apply in the UK, rather the UK authorities would have to apply for a UK court order, but there is nothing to suggest that such an order exists or was served on Rackspace UK. Statements by Rackspace, and the Home Office refer to a US subpoena or US court order.
So the evidence is that Rackspace UK responded to a US subpoena, which had no validity in the UK. So they effectively chose to conceal from their customer (Indymedia) the details of what was going on, and chose to hand over it's customer's hardware / data to someone (who they have refused to identify).
As others have already noted, Rackspace UK may have committed offences by it's actions. It would seem sensible for Indymedia to get legal advice as to:
a) what measures could be taken by Indymedia to force Rackspace UK to explain exactly what happened and who they handed the hardware/data to
b) what laws Rackspace UK is likely to have broken so that we may put pressure on the authorities to investigate and prosecute them
I believe measures should be taken against Rackspace UK in parallel with the attempt to unseal the court order in the US, as I can't see that anything contained in the court order could excuse any unlawful actions by Rackspace UK.
Regarding the Government's policy of neither confirming nor denying the existence of a MLAT request, this goes further than the US-UK MLAT requires, as Article 7 of that treaty states:
----------
1. The Requested Party shall, upon request, keep confidential any information which might indicate that a request has been made or responded to. If the request cannot be executed without breaching confidentiality, the Requested Party shall so inform the Requesting Party, which shall then determine the extent to which it wishes the request to be executed.
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Therefore, the Requested Party is only obliged to conceal the existence of a Request if the Requesting Party asks it to do so. Even then, if the Requested Party is unable to execute the Request without breaching confidentiality (such as obtaining a UK court order, which I would expect would necessitate disclosing the Request) and has advised the Requesting Party of this and been asked, nonetheless, to proceed, then the Requested party is free to acknowledge the receipt of a Request.
The Government can fulfill it's treaty obligations by adopting a policy whereby they acknowledge the receipt of Requests where confidentiality is NOT requested or has been waived as described above, and continue to neither confirm nor deny the existence of a Request at all other times.
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