Homeland Security Finally Files For Civil Forfeiture Of Domains Seized Back In June

from the taking-their-sweet-time dept

Mon, Jan 3rd 2011 6:39am — Mike Masnick

While we've been paying a lot of attention to the domain seizures by Homeland Security's ICE (Immigration & Customs Enforcement) group in November, we also covered a similar operation that took place back in June. It's been noted that no actual charges have been filed against the operators of those sites. But in early December, without most people noticing, apparently ICE finally filed to officially commence civil forfeiture procedures against those domains (thanks to Terry Hart who noticed this). To understand what's going on here, I'll again point you to Hart's explanation of the difference between seizure and forfeiture. Basically, seizure is simply the first step in a forfeiture process (a process, that we've noted is regularly abused by law enforcement). It doesn't appear the owners of these sites have been charged with anything yet at all. It's just that, effectively, the sites themselves are being charged with being used in the commission of a crime.

There's nothing particularly surprising or enlightening in the forfeiture proceeding document, other than acting as official notification if anyone wishes to claim a legal interest in the "property" in question. They would need to contest the forfeiture within 60 days of December 17th. This covers the domain names TVshack.net, Movies-Link.tv, ZML.com, Now-movies.com, ThePirateCity.org, PlanetMoviez.com, Filespump.com. As far as I know, there has been little indication that any of the original domain holders for those domains plan to contest the forfeiture process. Many have already moved on to other domains anyway.

There's nothing all that enlightening in the filing. It's pretty similar to the affidavit we saw that was used to seize the more recent domain names, with a few similar technical errors, but nothing necessarily as egregious as the errors in the more recent case. Basically, an ICE agent downloaded or streamed a few movies on some sites the MPAA pointed them to. The MPAA then said "those movies are not legally available online," and, voila, now ICE says it should get to own the domain name. It's basically ICE admitting that it's working for Hollywood now -- which explains why it announced those original seizures at Disney's headquarters (which still seems like a huge conflict of interest that no one has yet to explain). Oddly, it does not appear that anyone at ICE sought a third party, non-biased analysis of the legality of what was going on. They simply relied on the MPAA entirely.

All that said, I have to admit that I'm still at a loss as to how this is really fits under Homeland Security's mandate. Defenders of this point out that ICE has long had intellectual property issues under its purview, but those issues were supposed to be focused on preventing counterfeit products from entering the country. To extend that to internet websites seems like a huge stretch. Either way, it seems like Homeland Security must have more important things to work on.

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Filed Under: domains, forfeiture, homeland security, ice, seizure

38 Comments

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Anonymous Coward, 3 Jan 2011 @ 6:54am

It's basically ICE admitting that it's working for Hollywood now

Now, it's basically ICE saying that will enforce the laws when infractions are pointed out to them.

it does not appear that anyone at ICE sought a third party, non-biased analysis of the legality of what was going on

When exactly did that become a requirement for law enforcement? Do police have to ask someone else on the highway if you were speeding?
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- abc gum, 3 Jan 2011 @ 7:07am
  
  Re:
  And I thought copyright infringement was a civil nmatter, huh.
  If it is criminal then the buren of proof is a bit more stringent - no?
  [ link to this | view in chronology ]
  - Anonymous Coward, 3 Jan 2011 @ 7:35am
    
    Re: Re:
    If it was criminal, then �contributory copyright infringment� is not a viable theory.
    
    Sony v Universal (1984) observes that the theory of contributory copyright infringment has not been enacted into statute. And that fact was noted in Grokster.
    
    The Copyright Act does not expressly render anyone liable for infringement committed by another.
    
    It's a due process violation to hold someone criminally guilty for violating an unwritten law.
    [ link to this | view in chronology ]
    - Anonymous Coward, 3 Jan 2011 @ 7:48am
      
      Re: Re: Re:
      There are criminal aspects besides "contributory copyright infringment", that would include criminal facilitation, or for that matter something like commercial copyright infringement (infringment with a profit motive).
      
      We don't know, it is all speculation. However, it is safe to say that these sites would certainly appear to be operating outside of the law.
      [ link to this | view in chronology ]
      - Anonymous Coward, 3 Jan 2011 @ 8:28am
        
        Re: Re: Re: Re:
        ... it is all speculation.
        
        Care to elaborate?
        
        Lanzetta v New Jersey:
        
        No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes. All are entitled to be informed as to what the State commands or forbids. The applicable rule is stated in Connally v. General Const. Co.: 'That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well- recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.'
        
        (Emphasis added. Footnote omitted.)
        
        �No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.�
        
        So, do you want to elaborate on these supposed �criminal aspects�?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 3 Jan 2011 @ 9:16am
        
        Re: Re: Re: Re: Re:
        The only elaboration is that we don't yet know all that was in the documentation or reasoning behind the order to seize, we don't know what laws specifically were broken. Until then, everything is just speculation.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 3 Jan 2011 @ 9:30am
        
        Re: Re: Re: Re: Re: Re:
        The only elaboration is ... we don't know what laws specifically were broken.
        
        Catch-22
        
        That's some law, that catch-22.
        [ link to this | view in chronology ]
      - DH's Love Child (profile), 3 Jan 2011 @ 10:48am
        
        Re: Re: Re: Re:
        We don't know, it is all speculation. However, it is safe to say that these sites would certainly appear to be operating outside of the law.
        
        Really? and the proof of that would be?
        [ link to this | view in chronology ]
        
        Anonymous Coward, 3 Jan 2011 @ 11:36am
        
        Re: Re: Re: Re: Re:
        It always comes back to the same thing: If I have a guy I got to all the time to buy drugs, and he always has a source (yeah man, call billy, he has what you need), it can be clearly inferred that he is part of a conspiracy to sell drugs.
        
        The major mistake site owners keep making is thinking that because the files are hosted on another service, that they can point to them without any risk. The sites were great access points commonly used by people looking to obtain pirated material, and the sites knew it and continued to push the stuff.
        
        It is very simple. Absolute proof is for a judge and jury. Probably cause is all that is required to obtain a search warrant. The rest of the case as we know it has been documented on here. Keep up with the reading!
        [ link to this | view in chronology ]
        
        Anonymous Coward, 3 Jan 2011 @ 12:19pm
        
        Re: Re: Re: Re: Re: Re:
        ... because the files are hosted on another service, that they can point to them...
        
        Caselaw on the linking issue:
        
        Perfect 10 v Google (9th Cir., 2007)
        
        �.�.�.�. Google does not ... display a copy of full-size infringing photographic images for purposes of the Copyright Act when Google frames in-line linked images that appear on a user's computer screen. Because Google's computers do not store the photographic images, Google does not have a copy of the images for purposes of the Copyright Act. In other words, Google does not have any "material objects . . . in which a work is fixed . . . and from which the work can be perceived, reproduced, or otherwise communicated" and thus cannot communicate a copy. 17 U.S.C. � 101.
        
        Instead of communicating a copy of the image, Google provides HTML instructions that direct a user's browser to a website publisher's computer that stores the full-size photographic image. Providing these HTML instructions is not equivalent to showing a copy.�.�.�.
        
        (Emphasis added.)
        [ link to this | view in chronology ]
        
        Terry Hart (profile), 3 Jan 2011 @ 1:04pm
        
        Re: Re: Re: Re: Re: Re: Re:
        Note that portion of the decision speaks only to Google's liability for direct infringement. As far as liability for indirect infringement goes, the court affirmed the finding that Google was not vicariously liable but remanded on the issue of contributory infringement.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 3 Jan 2011 @ 1:27pm
        
        Re: Re: Re: Re: Re: Re: Re: Re:
        ... remanded on the issue of contributory infringement.
        
        Remanded for a civil proceeding on that issue.
        
        MGM v Grokster
        Although "[t]he Copyright Act does not expressly render anyone liable for infringement committed by another," Sony Corp. v. Universal City Studios, these doctrines of secondary liability emerged from common law principles �.�.�.
        
        (Emphasis added.)
        
        A common-law criminal charge of �contributory infringement� was not contemplated by the Ninth Circuit.
        [ link to this | view in chronology ]
        
        Terry Hart (profile), 3 Jan 2011 @ 3:09pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re:
        If you're arguing that criminal law never recognizes indirect liability, that's just flat-out wrong. Aiding and abetting -- or facilitating the commission of a crime -- makes you as guilty as the person actually committing the crime; that's basic criminal law. And just to be clear, 18 USC � 2 expressly says so.
        [ link to this | view in chronology ]
        
        Anonymous Coward, 3 Jan 2011 @ 3:49pm
        
        Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
        If the government wants to charge aiding and abetting, then they have to charge that. And then prove it.
        
        But if the government wants to charge that providing a hypertext link to infringing material �encourages� infringement, then that is insufficient to find criminal liability. Not without more.
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- Michael, 3 Jan 2011 @ 7:21am
  
  Re:
  The police don't enforce civil actions by seizeing property. This was never a criminal matter.
  [ link to this | view in chronology ]
- Anonymous Coward, 3 Jan 2011 @ 8:11am
  
  Re:
  Wrong analogy. This would be more similar to the cops issuing you a speeding ticket based on an unverified witness' calling in and reporting you, claiming you were speeding. The cops then issued a ticket without any investigation or challenge to whether the "speeding" was over the legal speed limit, or the person who reported you just thought you should slow down. ("Hey you kids, get off my lawn!")
  
  Police have speed detecting devices, calibrated "correctly" (as required for the enforcement to stand up in court) to act as demonstrable proof that you were speeding. Citizens may or may not have certified speed tracking devices, but for the enforcement agent to not demand the burden of proof and go through the due process of critical review, the accusation is arbitrary hearsay. Reasonable "proof" is very much a "requirement for law enforcement", despite your suggestion otherwise.
  [ link to this | view in chronology ]
Anonymous Coward, 3 Jan 2011 @ 7:10am

Now, it's basically ICE saying that will enforce the laws when infractions are pointed out to them.

It's now ICE saying that they will enforce the laws when infractions are pointed out to them by those they wish to listen to. Many other infractions have been pointed out the ICE that ICE has completely ignored. The question as to why they paid attention to these claims is still, unofficial opinions withstanding, unanswered.

When exactly did that become a requirement for law enforcement? Do police have to ask someone else on the highway if you were speeding?

It is a requirement of the law that an actual infraction have occurred. In the case of speeding the officer can not just state "it looked like he was going fast", in those cases the speed gun is considered the 3rd party, non-biased analysis.

In these cases ICE just claimed based on a 3rd party biased analysis that the content was a problem.
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Anonymous Coward, 3 Jan 2011 @ 7:36am

The US Government tightens their grip as they slide deeper and deeper into debt and bankruptcy. What happens when we can no longer borrow the deficit? Will we get the money back from Cheney and friends?
The Government will simply borrow (not pay back) from Social Security. Can you see it? 77 million old folks (baby boomers) in open revolution against having their future (they paid for it) stolen again by the Republican Party? Will it be Ohio State all over again except at the old folks home? Bring out the National Guard to protect us against people with canes and walkers.
Will they shoot your Grandma and Grandpa?
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- Anonymous Coward, 3 Jan 2011 @ 10:22am
  
  Re:
  Ohio State? Perhaps you mean Kent State (which is also in Ohio)? http://en.wikipedia.org/wiki/Kent_state#Kent_State_shootings
  [ link to this | view in chronology ]
- abc gum, 3 Jan 2011 @ 11:06am
  
  Re:
  "borrow (not pay back) from Social Security"
  
  Again ...
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alien coward, 3 Jan 2011 @ 7:39am

Is the "that no one has yet to explain" expression correct? I'm a foreigner, and cannot wrap my mind around it. :-(
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- Spointman, 3 Jan 2011 @ 7:42am
  
  Re:
  It should probably be "that no one has yet explained" or "that anyone has yet to explain."
  [ link to this | view in chronology ]
  - Anonymous Coward, 3 Jan 2011 @ 9:02am
    
    Re: Re:
    "to explain" is present tense
    "explained" is part tense
    
    Both are technically correct but convey different meanings.
    [ link to this | view in chronology ]
    - Gabriel Tane (profile), 3 Jan 2011 @ 9:09am
      
      Re: Re: Re:
      the 'present tense' is modified with the "has yet". It implies that no one has made explanation yet... or to put it another way: the present-tense of 'explanation' has not yet been created.
      
      It�s one of the reasons I hate the 'grammatical rule' of ending a sentence with a preposition. There is nothing conceptually wrong with saying "no one has explained it yet". However, the effete high-society snobs in the Victorian era introduced a good number of these 'rules' so that the educated would sound "better" than the uneducated poor. And that's the only reason we have such rules.
      [ link to this | view in chronology ]
      - Dirt_is_Fun (profile), 3 Jan 2011 @ 10:24am
        
        Re: Re: Re: Re:
        I love grammar lessons !! ;)
        [ link to this | view in chronology ]
        
        Gabriel Tane (profile), 3 Jan 2011 @ 11:11am
        
        Re: Re: Re: Re: Re:
        Me too... I hate structured, unnecessary grammar, but I love being a cunning linguist. ;)
        [ link to this | view in chronology ]
Monarch, 3 Jan 2011 @ 8:02am

More important things to work on? You mean like securing our borders from Mexican gangs bringing drugs into the U.S. and violent crime? Yeah, like that will ever happen! They might actually have to put their lives in danger while providing security for the U.S. Citizens!
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Anonymous Coward, 3 Jan 2011 @ 8:11am

Public Notice link not working
I'm unable to view the public notice for some reason.

Attempting to access:

http://www.forfeiture.gov/ViewNotice.aspx?n=34228&a=0

results in:

�We are sorry, but we are unable to locate the page you requested or an error occurred while processing your request.�

Has anyone else had more success? Or preferably a better link? I've also tried using the search at forfeiture.gov. But not gotten any records back.

Someone want to give me a hand, please? I normally browse without javascript, but I've tried enabling it, and still no success. Also, this machine doesn't have Adobe Flash installed, but I have access to less secure machines.
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- Anonymous Coward, 3 Jan 2011 @ 9:12am
  
  Re: Public Notice link not working
  Followup:
  
  Using Lynx on Solaris, I also get:
  
  �We are sorry, but we are unable to locate the page you requested or an error occurred while processing your request.�
  
  If someone's able to view http://www.forfeiture.gov/ViewNotice.aspx?n=34228&a=0 using IE, then I'll go log into a Windows box somewhere.
  [ link to this | view in chronology ]
- Mike Masnick (profile), 3 Jan 2011 @ 11:50am
  
  Re: Public Notice link not working
  I'm unable to view the public notice for some reason.
  
  Weird. For whatever reason it appears to have moved to:
  
  http://www.forfeiture.gov/ViewNotice.aspx?n=36208&a=0
  
  If it's still not there, you can do a search on "TVshack" on their search engine and it should turn up.
  [ link to this | view in chronology ]
  - Anonymous Coward, 3 Jan 2011 @ 11:58am
    
    Re: Re: Public Notice link not working
    Thanks, Mike.
    
    Link now working with Firefox on Ubuntu. Javascript off.
    [ link to this | view in chronology ]
Kevin (profile), 3 Jan 2011 @ 8:27am

Their thinking?
Since ICE takes orders from DHS, and ICE is in charge of making sure that counterfeit/fraudulent/illegal goods are seized at the borders...... So they twist the law and stretch it to include websites that link or post subject matter related to illegal downloads so sayith the MPAA. I may not have the eloquence of Dark Helemt but that's the best I can do to rationalize their actions.
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- The eejit (profile), 3 Jan 2011 @ 11:41am
  
  Re: Their thinking?
  Not quite.
  
  LAst I checked *.tv was an international TLDm meaning that the ICE doesn't have jurisdiction. I think Imm'a crack open the popcorn and opium.
  [ link to this | view in chronology ]
  - Kevin (profile), 3 Jan 2011 @ 12:04pm
    
    Re: Re: Their thinking?
    Since when does this government of our's really pay attention to what it has and does not have jurisdiction over?
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Anonymous Coward, 3 Jan 2011 @ 4:40pm

"Homeland Security Finally Files For Civil Forfeiture Of Domains Seized Back In June"

AT THE SPEED OF GOVERNMENT!!!
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- Anonymous Coward, 3 Jan 2011 @ 4:40pm
  
  Re:
  (well, government acts quickly to serve corporate interests, but they act slowly to do anything else).
  [ link to this | view in chronology ]
- Anonymous Coward, 4 Jan 2011 @ 5:02am
  
  Re:
  AT THE SPEED OF GOVERNMENT!!!
  
  �The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.� ��Elrod v Burns (1976)
  [ link to this | view in chronology ]
Anonymous Coward, 3 Jan 2011 @ 6:15pm

I have to admit that I'm still at a loss as to how this is really fits under Homeland Security's mandate.

Are you suggesting the federal government has to a brand new agency every time it passes a new law? Laws are quite reasonably enforced by whatever agency is the closest. ICE already handles copyright infringement through importation at the border, so this seems like a clear fit.

The other possible agencies I can think of are all way a way worse fit: BATF, Secret Service, US Marshalls, or FBI.
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