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Indymedia and Zenger

It may become plausible to contend that twenty-first century electronic journalists have less freedom to dissent than did eighteenth-century American print journalists.

It may become plausible to contend that twenty-first century electronic journalists have less freedom to dissent than did eighteenth-century American print journalists. With the FBI’s recent seizure in London of Indymedia servers from their service provider, Texas-based Rackspace, the US government has assumed the role of an imperial censor.

In the early eighteenth century American colonies, where print culture’s impact on politics was rising, the Zenger case catapaulted the question of press freedom to the political forefront. The second issue of Zenger’s New York Weekly Journal in 1734 asserted "if such an over grown Criminal, or an impudent Monster in Iniquity, cannot immediately be come at by ordinary Justice, let him yet receive the lash of satire, let the glaring truth of his ill administration…render his actions odious to all minds." If a sovereign state was unjust, in other words, the task of a free press was to expose its maladministration.

The British colonial governor, William Cosby, had his slave burn confiscated copies of the Journal and brought its uneducated German-born owner-pressman, John Peter Zenger, to court on charges of seditious libel for “inflaming … Minds with Contempt of His Majesty.” After nine months in prison and a not-guilty verdict from a jury, Zenger was released. Beginning with the Zenger case, legal and constitutional theories of press freedom enter North American public discourse and cultural practice. Throughout the eighteenth century, the legal protection afforded to print culture was to prove a thorn in the side of the British empire’s rule in North America, ultimately a fatal one.

That capacity of a resistant press to interfere with the carefully-laid designs of expansive, global governance has repeated itself many times since in the history of journalism. What has not been encountered previously, however, is a legally interlocking and integrated global system for press seizure, censorship, and silencing of resistant electronic culture. It is this system that last week silenced significantly portions of the Indymedia network. Sites serving over twenty countries dropped with the seizure. The servers were returned after nearly a week, presumably after authorities copied their contents.

The full story of the FBI’s seizure of Indymedia servers in London is not yet known. At present, it appears that four states are involved: Switzerland, Italy, the United Kingdom, and the United States. The FBI issued a subpoena to Rackspace, seizing the Indymedia servers, apparently on behalf of a Swiss federal prosecutor in Geneva who is conducting a criminal investigation of Indymedia’s coverage of last year’s G8 Summit, and also in behalf of an Italian investigation of Indymedia Italia for alleged support for terrorism.

US authorities issued the subpoena under the terms of its Mutual Legal Assistance Treaty with Great Britain, a convention that normally addresses international terrorism, money-laundering, and organized crime. British authorities have played a supine role that has already drawn severe domestic criticism for official willingness to cooperate in actions that reek of repression.

For its part, Indymedia’s service provider complied with the seizure demand and issued a statement that “Rackspace is acting as a good corporate citizen and is cooperating with international law enforcement authorities. The court prohibits Rackspace from commenting further on this matter." Even a rudimentary explanation of the server seizures has been denied by this “good corporate citizen,” complying with an international gag order as strange as it is outrageous. According to Kurt Opsahl, an attorney at the Electronic Freedom Foundation, “Rackspace contends that a court order prevents them from providing a copy of the subpoena, confirming which court issued the order, or the government agency who served the subpoena.”

Kafka would be hard-pressed to invent a more circuitous international legal mystery. Indymedia cannot defend itself because neither it nor the public knows the nature of the subpoena. Indymedia further cannot defend itself because its service provider refuses to either contest the subpoena or inform it of of what court -- or administrative commissioner -- issued the order. Indymedia’s reliance on a diversity of servers has enabled the network to continue operating despite the damage inflicted.

A global means of censorship and control based in international law, as exemplified in this case, is a new political reality. This new trans-national exercise in control of the press has been promoted through multiple jurisdictions functioning in cooperation, a legal tactic that, while complex, enables investigators and prosecutors to do as they want precisely due to that complexity. In the eighteenth century, Zenger had a single clearly-defined opponent in the Crown; in the twenty-first century, Indymedia has multiple sovereign-state opponents whose interests are by no means clear. It is a distinction of clarity replicated in legal process: Zenger had a public trial, albeit after nine months in prison, whereas Indymedia received only second-hand notice of the seizure. Due process has disappeared.

The Indymedia server seizure underlines how legal globalism – the use of international law to support the interests of capital and its institutions – has outsourced the First Amendment and other national constitutional protections of press freedom. US authorities can point to the foreign jurisdictions involved and claim that the First Amendment does not apply. The European states involved can point to the US authorities and state that the matter involves a US subpoena so European constitutional protections do not apply. All state parties can hide behind each other’s claims, byzantine allegations that appear too thin to have enabled FBI recourse to the far-simpler-to-use provisions of the Patriot Act.

Indymedia is not a well-behaved press, one that conforms to received notions of journalistic respectability. The network’s open publishing format means that it frequently attracts some of the most marginal political expression and vitriolic opinion. Yet that same openness and anti-capitalist collectivism also mean the creation of a participatory vitality, one where simplified tools for electronic publishing generate new expression and audiences. Indymedia publishes vastly more information about the effects of economic globalization in increasing poverty and environmental degradation than any other source on the Internet, together with reports on local and international activist groups and communities acting in opposition to globalization and poverty. It should come as no surprise that legal globalism targeted Indymedia given its history as a center for anti-globalization activism.

Electronic “Contempt of His Majesty” can and will continue to trigger official investigations that seize the Internet presses called servers. The seizure of Indymedia servers highlights the degree to which figurations of dissent and terrorism have become interchangeable in political thinking predisposed to make such substitution. This is a function of an imperial mentality, one that identifies dissent as a threat to proper order. The legitimization of such political dissent and its publication was a central project of the European Enlightenment in the eighteenth century, and is emerging as one of the crucial challenges to free electronic publication on the Internet.

Indymedia has established a solidarity statement in defense of its freedom to publish.

Joe Lockard is assistant professor of early American literature at Arizona State University and a member of the Bad Subjects Collective.

Copyright © 2004 by Joe Lockard. All rights reserved.