Customs Boss Defends Internet Censorship; Says More Is On The Way
from the same-rules,-minus-the-first-amendment dept
Over at the State of the Net conference in Washington DC today, John Morton, the head of Immigration and Customs Enforcement (ICE) at Homeland Security felt it was time to defend ICE's seizure of domain names. Of course, he did not actually address the many different problems with the details of how they seized the domains. Instead, he just insisted that ICE had no "intention" of limiting free speech. That they did so in clear violation of the law... well... just skip over that part.He also claimed that "the same rules must apply" both online and off -- which is entirely true. So I'm curious why he thinks the First Amendment and all of the case law concerning prior restraint or shutting down legitimate speech don't apply online. Not surprisingly, he ignores all of that as well.
He also stated:
"We can't live in a society where the Internet has some protection for criminals. ... We are going to stay at it. I am not apologetic on this last point."Here he's just being disingenuous. The law does not protect criminals. There are existing laws that allow the government or private parties to file a lawsuit against anyone accused of breaking the law, and allowing (as per our normal due process system) an adversarial hearing to be had in court so that both sides get their say. What Morton and his team did ignores all of that. It ignored due process. It seized sites that had substantial non-infringing content, it used serious technical and legal errors to get a judge to rubber stamp seizures of domain names that were widely used by the music industry to promote their own works. And he addresses none of that.
Finally, he claims that the domain seizures were really effective because a bunch of other websites shut down in the wake of the seizures. This is kind of funny because of how naive it makes Morton and ICE appear. Yes, some websites that knew they would be equally easy for Homeland Security to seize without due process or respect for the First Amdenment switched to other URLs outside of US control, but it's pretty naive to think that those operating the sites simply stopped doing so.
No one has yet come up with a reasonable explanation why suing these sites first was not possible. Why did they need to be seized? The only explanation given so far was that some third party might get ahold of them and use them for nefarious purposes, but we already explained how that makes no sense. A judge could easily have issued an injunction barring the sale of the domain names while a lawsuit was ongoing. It's troubling that the best John Morton can do is to simply make stuff up to support a campaign of censorship on behalf of the entertainment industry (who was such a close partner that the initial part of this campaign was announced from Disney's headquarters). We should be quite concerned when law enforcement officials are taking orders from companies, and the best defense they can come up with to support these actions is to lie and pretend that there were no other legal means that do not violate free speech or due process.
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Filed Under: domain seizures, homeland security, ice, john morton
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Bombardment
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Sadly, this isn't true, and has been proven over and over again on TD.
The amount of effort needed to even start an online lawsuit is much higher than it is in normal terms. Just trying to determine who you should sue, with "safe harbor" hosts and services all either denying access to user information or providing that information at an incredibly slow pace is work by itself. Attempting to find jurisdiction, where the courts seemingly uninterested in addressing the issue fully is another problem. It goes on and on.
The internet in general falls into areas which were not considered when many of the basic statued were written. There is no clear jurisdictions set up, no clear indications in law as to who is really responsible for what.
Domain seizures are not unlike seizing a car or a business are part of an investigation. A warrant is issued, served, and executed. Expecting the rules to be different online is just not going to wash it.
Further, the "safe harbor" rules are very likely to get tightened, as it is clear that the shields are not just being used by the services themselves, but also by those who use the services to commit crimes online. That will likely change as the government(s) pushes more to regulate the internet.
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Re: Bombardment
what would you expect, ICE to do the press conference from the pirate bay bunker?
Jackwagon.
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Re: Re: Bombardment
FTFY
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"Justice is hard! Best to just make it up as we go along."
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Re: Sweet Legal Tender
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Re: Re: Bombardment
Even if you feel that there is nothing questionable going on here, government agencies should know they have to keep their noses cleaner than that. There shouldn't be anything that even suggests a potential conflict of interest
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Expression is presumptively protected by the First Amendment. Seizing a bookstore is not like seizing an auto dealership. The Supreme Court rejected that analogy in Quantity of Books v Kansas (1964):
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Re: Re: Bombardment
Which is interesting when you consider that many of Disney's early movies were based on public domain content. Even more interesting when you consider that one of the reasons that movie studios moved out west to avoid paying Thomas Edison royalties.
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ICE
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the fact that the internet wasnt around when statutes were written is an irrelevant issue. the current laws are what they are. as times change, laws change and the legal system evolves to a certain degree with it. when current laws are so outdated (for example many of the 'blue laws' that are still on the books and laws regarding cars and spooking horses) they need to be addressed. this is what our existing legislature is for... not that they have been taking that job all that seriously over the last couple decades.
domain seizures are very much UNLIKE the seizure of a car. one is physical property being seized as evidence, one is not. by all means if a domain is participating in illegal activity, there are means to address it and those should be taken. but seizure of a domain just ties up a set of words that society has agreed has meaning and limiting the functionality of DNS to redirect the entry of those words to a browser over to an associated IP address. seizure of a domain [name] is pretty stupid to begin with and shines a light on exactly how uneducated these people are in terms of technology as a domain in and of itself would have no evidence beyond what IP it points to. watered down oversimplified explanation? yes... but still 100% valid.
tossing out terms such as "very likely to" does not fly when talking about what any sort of laws will be in the future. right now, it doesnt matter what anything is "very likely" to become, any and all law enforcement agencies are required to operate within the existing structure of codified law (even secret courts have rules and laws they must operate within) so its inclusion in this discussion is irrelevant.
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Welcome to the Police State, America.
Years ago I thought the internet and other related technology would be a major boon to mankind.
In the end, it seems it's just another corporate revenue engine - or that's what many would like to make it.
It's a sad state of affairs how greed has so wholly consumed our Government.
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You're really saying that because it's difficult to identify the actual responsible party, law enforcement can just pick a convenient 3rd party? Imagine if that happened elsewhere:
1) Little old lady gets mugged. It was dark, so she didn't get a good look at the attacker. No one in the area is volunteering information. Can the cops just say that's its too difficult to find the attacker and decide to arrest the first guy they think actually did it?
2) Bomb threat is phoned in to a building. Building is evacuated, and no bomb is found. Luckily no one is hurt. Turns out the threat came in from a pay phone. Instead of doing an investigation and finding the individual, cops shut down the local phone company. Since they don't keep records of who uses their pay phones, they're obviously guilty of allowing their phone network to be used for terrorist purposes!
Domain seizures are not unlike seizing a car or a business are part of an investigation. A warrant is issued, served, and executed. Expecting the rules to be different online is just not going to wash it.
We're not talking about seizing a physical object or a business. You started off your post saying how things online are very different and that the same procedures for dealing with something offline aren't going to work online. Now you're saying that the procedures used for seizing something online should be the same as those offline.
Which is it?
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Re: Bombardment
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Re: ICE
We need a 3rd party that actually cares about the people and is large. I will continue to vote for neither Dems or Repubs in an effort to make a difference. As somebody replied to me in a different post before though, the system is set up to discourage that as much as possible.
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Did you think that it was even a remote possibility that he would address any of the legal issues surrounding these cases? They know there's no way to defend their actions, so they just ignore the hard questions and hope nobody notices.
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Re: Re: Bombardment
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Translation: It takes to much effort to proceed in a manner that respects the rights of the accused, therefore let's throw the rights of the accused out the window. Proving infringement is such a hassle. The ICE decided the websites were infringing, and that's good enough for me.
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Re: Re:
It is also hard to apply that judgement here, as there are individual items which can be seized and held during the court proceeding. In the virtual nature of the internet, the server (and domain name) are in fact parts of the process, no different from a car or a cell phone for that matter, which can easily and legally be seized.
So that judgement is nice, but not really relevant. Good try though.
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No, that isn't what they are doing, nor does it apply here.
My question of difficulty is one of "services" using their safe harbor rights not only to shield themselves, but also to become a defacto block between authorities and the wrong-doer. It was never the intention of these laws to extend the shield past the services, nor were they really intended to protect redistributors of "user contributed" content to start with. That is a battle for another day, however.
Safe to say that safe harbor provisions should not be used as a method to obstruct legal action. Having an ISP "decide" unlaterally that they will only identify a very small number of users in response to a lawsuit creates just such a block.
The domains seized in these cases are clearly not just innocent hosts, they are publishing companies, the "new journalists and press" who choose what appears on their sites. They chose to allow pirated material, and encouraged the distribution of pirated material - or at least, that is the sort of argument that was used to obtain the warrant and the seizure of evidence.
Running an illegal operation online should not be different from running one in real life. You are subject to the law, like it or not.
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Simply put ....
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Oh and ...
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dom reg:
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The intent of the seizures was to shut down the websites.
From the affidavit (p.66):
Even assuming that the affidavit sets forth probable cause, that is not sufficient.
Fort Wayne Books v Indiana (1989):
(Citations omitted.)
There is not even an allegation that the domain name itself directly infringed. The name is itself expressive speech. And that domain name was what was actually seized—with the intent to completely shut down the websites. An ex parte proceeding is simply not sufficiently protective of the interests at stake here.
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Re: dom reg:
Currently only .com's have been seized, due to a working relationship with Verisign that manages the .com registry. COICA would allow them to go after other TLDs by getting registrars and others to block service.
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Re: Re: Bombardment
> pirate bay bunker?
As if those are the only two choices.
Here's a thought. How about doing press conferences from ICE headquarters like most professional law enforcement agencies?
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> higher than it is in normal terms
So basically your saying that the people's constitutional right to due process is inversely proportional to how much "work" must be expended to defeat it?
Or in simpler terms, the power has shifted somewhat from the elites to the people and the elites are throwing a fit over it.
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> when many of the basic statued were written.
That doesn't mean the police get to just ignore those statutes and do whatever they please. (Oh, and due process isn't a mere statute. It's a constitutional right.)
Until the law is changed properly, the police have to obey it as it stands. Not just ignore it whenever it becomes inconvenient.
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According to the Second Circuit, domain names are not presumptively protected by the First Amendment:
Name.Space Inc. v. Network Solutions Inc., 202 F.3d 573 (2nd Cir. 2000).
That would indicate that the First Amendment exception does not apply to domain names, no? If that's right, then the "censorship" argument sort of breaks down, IMO.
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You assume that they are off the internet. In many cases they are not. It's quite simple to get a new domain name registered to a company working outside the US.
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AJ, I'm disappointed that you've gone back to this argument. Agent Reynolds, in his affidavit, made it clear that the seizure was designed to take down the speech *on the site* not just the speech of the URL.
That's prior restraint.
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Like the Rap page where a lot of companies uploaded their own material for promotional purposes?
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Re: Re: ICE
I've always thought the ideal form of government was a benevolent dictatorship.... unfortunately finding an appropriate benevolent dictator is about as easy as finding a real democracy - tends to only exist in the imagination.
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Perhaps one should just be able to ignore patents entirely if one cannot track the owner because it takes too much effort.
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The part that you quoted does not actually speak to presumptions or initial burdens, other than to imply that (in the Second Circuit) a presumption is rebuttable.
However, in the present cases, there is not even an accusation that the domain names infringe others' trademarks. The government cannot meet any burden at all to show that the domain names are outside the First Amendments' protection. The government hasn't even begun to argue that.
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That's prior restraint.
I've pointed this out already in this thread, but what the agent says is meaningless. The actual effect of the seizure is what's important, and as you've pointed out before, the seizures do not in fact block the speech.
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Re: Re: Re: ICE
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In an ex parte seizure proceeding, the court cannot look beyond the four corners of the affidavit. If you strike what the agent says, then there is nothing.
That is why the procedure is constitutionally deficient: “The separation of legitimate from illegitimate speech calls for more sensitive tools.” (Speiser v Randall (1958)).
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Isn't the accusation simply that the domain name was property used to commit crime, thus subject to seizure? I think they'd only have to show the domain name was outside the First Amendment's protection if it was presumptively protected in the first place.
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(Not a poke, a genuine question - IANAL nor american....)
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That is why the procedure is constitutionally deficient: “The separation of legitimate from illegitimate speech calls for more sensitive tools.” (Speiser v Randall (1958)).
So an agent can apply for a warrant for things that are not OK, and as long as he tells the judge it's OK, the judge will just agree? I should think the actual effect of the warrant would interest the judge more than that.
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Who's being disingenuous?
A Malaysian has no reason or obligation to follow American law. But that does not mean if a Malaysian website is deemed illegal by an American judge who examines it, it should be accessible in America.
You still have not suggested any reasonable means to address this. All you do is whine constantly about the First Amendment, which has nothing to do with protecting criminal enterprise.
If you want to run a legitimate free speech website, that is not affected by this law as written.
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Re: Who's being disingenuous?
Not a lawyer but as I understand it "due process" would require an adversarial hearing, which as far as I am aware contains process and procedure for handling absent defendants, and then you get to dish out the verdict.
To my knowledge you do not (unless perhaps you guys have turned into China when I wasn't looking) get to "punish" any business foreign or domestic on the grounds of "because I say they did something wrong though I can't be bothered to prove it properly"
Had they gone though that process and the reason been openly and correctly punitive as opposed to in the guise of "evidentiary seizure" I doubt Mike or anyone else would have even raised an eyebrow about the domain name being seized, pointless though it is.
The problem is not that they attempted (badly) to shut the sites down, but that they did so in a way that abuses due process - government agencies aren't supposed to lie about the reasons for doing something just because it's too inconveinient to do it the right way.
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Watch the last 2-3 minutes of Morton's presentation.
He refutes all of Masnick's FUD.
http://www.youtube.com/watch?v=OWZY_LujUhc&feature=player_embedded#!
When will Mike Masnick explain why he is such a rabid piracy supporter?
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Copyright infringement has no protection under the First Amendment.
Just because there were instances of protected speech on the site doesn't protect them from being seized for their illegal behavior.
We've been over this a million times.
Mike Masnick just continues to lie about it because his agenda is pro-piracy and he thinks he can manipulate public opinion.
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Morton did address them. Watch the last few minutes of the video.
http://www.youtube.com/watch?v=OWZY_LujUhc&feature=player_embedded#!
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This is so retarded.
The illegal sites and pirates aren't competitors, you silly fool.
You people are truly sailing off the edge.
American commerce is something the feds are going to protect no matter what. Disney is as American as it gets. If you don't like it that the gov is protecting an American brand and jobs, tough fucking shit.
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Re: Re: Re: Re: Bombardment
Besides, Google seems to get accused of "piracy" fairly regularly and indeed if you had your way would probably have had many judgements against them it for it. So has Microsoft fo that matter. "Legitimate" companies regularly sue each other over patent and copyright infringement - the mobile phone mess for example.
Where's the magic line of infringement that turns a "legitimate" company into a "pirate" and therefore suddenly stops it being your competitor? And does that line get drawn before or after someone is actually found guilty of anything? (Hint: those should be apparent to anyone with any kind of sanity as rhetorical questions)
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He is also still referring to domain names being seized as shutting down the sites in question and refers to the fact that very few have come up again, which seems questionable. I know how DNS works and it simply doesn't work that way and removing/redirecting a DNS entry in and of itself "takes down" nothing. So for that to be said he is either mistaken or deliberately misleading - either is worrying.
I'm also interested that when he refers to the effect of taking down the 5 original sites, he says that 81 other sites voluntarily went down in response citing that as a fantastic effect of the seizure. Firstly 81 out of a possible (Number Pulled Out Of Ass) 1000's? 10s of thousands? or more sites that "infringe" according to these criteria doesn't sound that great to me. Secondly, and more worryingly, he later refers to a futher 132(?) "suggestions" made by the industry (e.g. presumably Disney where it started) that were investigated leading to.... guess how many?... yes 81 full blown investigations intended to lead to the same thing.
That suggests to me that the "voluntary" takedowns he referred to amounted to "We the US government suggest you stop whatever it is you might be doing.... otherwise we might have to 'investigate' you, know what I mean?".
I think it was Al Capone who said "You get a lot further with a kind word and a gun than just a kind word". Are we seeing the govermental equivalent of patent trolling lawsuits?
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