Homeland Security Seizes Another 18 Domain Names, With No Adversarial Hearings Or Due Process
from the can't-stop-now dept
As a bunch of the proprietors of domain names seized in earlier questionable domain seizures are preparing to fight back against the seizures, Homeland Security can't resist seizing more domain names. This time, it looks like the seizures were more focused on sites selling counterfeit physical goods, and the seizures were purposely timed to Valentine's Day. Going after sites that sell counterfeit goods makes a lot more sense than some of the other sites that were seized in the past, but there still are serious questions about the legality of such a seizure prior to any adversarial hearing, and with no attempt to even communicate with the site operators. I don't know if this is the case or not, but how does ICE know that these sites did not believe they were selling legitimate products? What's wrong with going through an adversarial hearing in which the site's operators are allowed to defend themselves? If they're really breaking the law, let that be determined at a trial. At the very least, considering the widespread questions about the legality of these seizures, wouldn't it make sense for Homeland Security and ICE to wait until the legality of such seizures is reviewed by a court?
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Filed Under: domains, due process, homeland security, ice, seizures
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Oh wait, there's no due process, something that America was founded on.
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Sorry.
And Masnick knows this, as he's been told it dozens of times. But he ignores it because his agenda is to support piracy
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And you know this, as you've been told it dozens of times. But you ignore it because your agenda is to oppose Techdirt.
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Educate yourself, please. Copyhype.com.
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Average Joe argued this for a long time, using actual knowledge and lots of legal citations - he actually brought new precedents and rulings to the debate, and raised some interesting questions. And yet even he eventually conceded that, under the most detailed reading of the law he could manage, seizures like this are probably unconstitutional.
Meanwhile, you have been repeating the exact same non-argument ad nauseam, and you still insist you are right. Sorry buddy, but nobody's buying it.
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We're experimenting to see if they eventually choke to death on facts and logic.
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Might want to check back with Joe on that one...
And Terry Hart IS a lawyer, and demonstrated quite clearly that the seizures are perfectly just and legal... at copyhype.com.
Again, educate yourself and stop being willfully blind.
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Ummm...just because someone is a lawyer doesn't mean they cannot interpret the law incorrectly.
Again, educate yourself and stop being willfully blind.
Yes and you too, except try educating yourself from multiple sources, not just the one source that is completely in-line with the view you have already pre-decided upon.
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You'll notice that not once has Masnick had a lawyer on here that was an expert on copyright law, criminal law or civil procedure say that the seizures were unlawful.
He's just grandstanding and trying to create FUD.
Because he's the biggest piracy apologist on the net.
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Why do you lie? Multiple lawyers have responded to you.
By the way, where did you get your law degree?
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Got a cite for that, Sparky?
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If living up to our constitutional beliefs is "living in la la land," then count me as a citizen.
Really pretty scary how folks are supporting a lack of due process.
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As far as Due Process, I believe they're following the rulings by the Supreme Court. You know, the guys who interpret what procedural due process is.
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Actually, it's not. Article 1 Section 8 is the copyright clause. It covers copyright and patents. The latest seizues had to do with trademark.
But, more to the point, if it's "clearly being violated," file a lawsuit against those violating the law, and let the court declare them guilty.
As far as Due Process, I believe they're following the rulings by the Supreme Court. You know, the guys who interpret what procedural due process is.
We've already pointed to numerous SC rulings that say you're wrong. Please keep up.
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No you haven't. Please stop lying and saying you have.
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Yup, let's allow them to continue to run their criminal enterprise for the years it takes to get the case into court, and then try to summon them from whatever country they are hiding in, and then try to get a judgement, and then try to enforce it.
Yeah, that sounds like a plan. A really long one.
You do love piracy, don't you Mike?
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Yeah, that sounds like a plan. A really long one.
You do hate due process, don't you AC?
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Probably not a bad plan for those involved - but then what's the point?
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If you made a cheat sheet with all of the relevant rulings that you've "cited" in terms of SC rulings, maybe some of us "trolls" who don't get to read 50 posts a day(with the relevant underlying cases) might have a place to go to so we can actually argue against your point.
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I'd rather spend my time building a more censor-resistant system than the current ICANN / DNS debacle. Screw the courts. They're broken.
Unfortunately, I'm aware that a more censor-resistant system will be used and abused by copyright infringers, counterfeit-goods dealers, and other so-called "cyber criminals." So be it. At this point, I see a bigger danger from judges who refuse to see speech when confronted with proper nouns. And a huge danger from lawyers who think due process is optional.
We can let the Democrats and Republicans censor each other. Good riddance.
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Just as a hypothetical, what do you do if a Chinese company is selling counterfeit goods using the internet as its advertising. There is no physical address to the company which can be found. E-mail is not sufficient for due process notification. Is this company litigation proof because you can't really comply with due process?
Note: This is not an argument for if we can't get due process then we shouldn't try. I've made my arguments for due process(prelim injunctions, informing contributory infringers), I'm just pointing out one of the downfalls of following due process to the 9snotification, court hearing, jury trial). As a procedural issue, that later is not needed(since this is not free speech related, IMO), and there are many well defined rules which can get legally enforceable rulings without going through the adversarial process.
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It is well-settled that the copyright clause is both a grant of power and a limitation on that power.
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No longer really news
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By no due process do you mean there was absolutely no notification or the web hosts did not show up in court to defend themselves? The former is bad, the latter is first year civil procedure and ok.
In reality, as one of these websites, it's more economic to be shutdown and open back up in 3 days under a new domain than to show up and court, fight it, and possibly face copyright charges. Why avail yourself to jurisdiction in the US if it takes 2 days to be back in business?
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In the previous seizures, neither notice nor opportunity for a hearing.
Why would the latest seizures be any different?
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Please, don't confuse due process with a long drawn out court proceedings. These companies are able to get their property back by fighting this in US courts. But, as with any other legal case, preliminary injunctions or seizures of property can apply if certain thresholds are met.
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In theory there was, but there are a lot of questions as to whether the proper threshold as described in the law was adhered to, and as to the degree of scrutiny these warrants received from the judges.
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No.
In theory, the fundamental basis of due process is notice, and the opportunity for a fair hearing before a neutral judge.
• No notice is not due process.
• No opportunity for hearing is not due process.
Due process is fundamental fairness.
Now, sometimes —sometimes— the notice of the charges can be delayed. Sometimes —sometimes— it's ok to take action pending the opportunity for a hearing. Ex parte proceedings are not disallowed. But ex parte proceedings are not a substitute for due process. A one-sided hearing is fundamentally unfair.
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All I meant to acknowledge is that there ARE legal mechanisms allowing for the seizure of property before a trial without violating due process - however I do not for a second think they apply here
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I'll ask you the question, what level of evidence do you need to think a website is probably pirating goods(movies, shows, jerseys, toys, etc.)? For me, it's the pictures of goods offered in comparison with the original(copyrighted or trademarked) goods and the unlicensed nature of the offer.
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The domain names themselves - which are what were seized - are immaterial to prosecuting the actual operators of the website. They contain none of the infringing or potentially infringing material. There is, quite simply, no good reason to seize them - and as such, the seizures seem to be a shortcut method of punishing the sites before determining that those sites have actually done anything wrong.
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The notion here that "due process" embraces for all practical purposes a full trial on the merits represents a fundamental misunderstanding of what constitutes "due process" under US law. Merely by way of example, the most extreme case of "seizure" has to be the arrest of an individual who under our law is innocent until proven guilty. And yet, pre-trial detention is commonplace. Are persons here really implying that such detention is unconstitutional under due process grounds because no judgement of guilt has been rendered by a court?
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That's not what anyone is saying. But you know damn well (you are a lawyer, right?) that it's possible to request a preliminary injunction, in which the other side gets to put forth their argument before the judge grants it, right?
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Heck, they could argue venue for years.
The injunctive relief is neither timely nor sufficient.
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You have no idea how a preliminary injunction works, do you? It does not take months or years.
Thanks for demonstrating your ignorance.
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Years? Never seen one take this long, but there is always a first time.
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Shakespeare was right!
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The "e.g." signified that there are a host of motions that are typically made before a defendant files an answer to a complaint. Only after an answer is filed is a motion for a preliminary injuction ripe for a hearing.
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Let's let the offender file for an injunction to stop the seizure. That would be way more productive. Oh, wait, nobody likes that because it would take too long!
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You're just re-making my point. Lawyers need to become more efficient - without abandoning due process.
It seems to me that all this delay exists only because the legal system exists in a cozy unregulated state.
Legal inefficiency shouldn't be used to justify unfairness.
If the lawyers didn't benefit from all this delay then I'm sure that they are smart enough to fix the problem.
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It simply amazes me that everyone who thinks these seizures are OK can be so confused about the law, and haven't ever seen a TV show or movie.
When you are arrested on suspicion of a crime, you get to call a lawyer, and have an arraignment where the charges are read, and then you get a chance for bail. All of this shows what is called the "adversarial" nature of the law...two sides present their case to the court, and the court rules on the matter.
That's the difference in these seizure cases...there is no opportunity for both sides to present their viewpoint before a ruling is made. Why so many people can't see that as a problem is beyond me.
I can only hope that everyone who is supporting these one-sided rulings will someday be on the receiving end of something similar. When that happens, remember that it's "legal" and you shouldn't complain that you no longer have a house, car, or your life savings. And, if you think it can't happen to you because you haven't done anything wrong, Google for "asset forfeiture" mistake and read the horror stories.
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I can sympathize with that sentiment.
But, thinking rationally, I cannot endorse it. I believe that people who are treated unfairly by the authorities —treated high-handedly— those unfortunate people tend to be more likely to further support unfair and high-handed treatment of others. It's sort of a Stockholm syndrome.
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The Supreme Court gives us Winters v. Natural Resources Defense Council(2008) which state that one “must establish that he is likely to succeed on the merits [i.e. win at trial], that he is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of equities tips in his favor, and that an injunction is in the public interest.”
Showing the nature of what is sold on the site(illegal goods), and the irreparable harm(the unlikelihood of foreign defendants being availed to US courts for copyright infringement) would probably suffice for likelihood to win an irreparable harm.
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It's the former. No notification whatsoever. In the past seizures, the websites themselves tend not to hear from the government at *all* for at least two months. The domains seized in November *first* heard from the government in January.
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Really, this is just a procedural issue that I'm not sure would have much difficulty being rectified(really, these companies are destroying copyright law and there really wouldn't be much difference if you forced them to send some sort of notice).
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No. Only the top level registrar.
Really, this is just a procedural issue that I'm not sure would have much difficulty being rectified(really, these companies are destroying copyright law and there really wouldn't be much difference if you forced them to send some sort of notice).
Do you know that for sure? In one of the seized domains, we provided counter-evidence that showed that all four songs that DHS/ICE used as evidence had actually been provided by the copyright holder or a representative of the copyright holder.
Multiple such domain holders are about to fight these seizures (months later) in court, so we'll see just how legal they really were soon...
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Oh look! Mike Masnick lies about the facts again!
The four songs you refer to were not all the evidence used.
Multiple such domain holders are about to fight these seizures (months later) in court, so we'll see just how legal they really were soon...
oh promises, promises...
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They were all of the "example evidence" submitted against dajaz1, one of the targeted domains. A judge signed off on seizure of that domain without having seen a single shred of viable evidence, and in fact having been presented with four articles of fraudulent evidence.
You don't see a problem there?
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Yeah, they were. Feel free to point out in the affidavit what other evidence was used to seize dajaz1.
oh promises, promises...
Will you admit you were wrong after these cases go to court? I doubt it.
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Do you REALLY think they would have seized that domain for 4 SONGS???????????
You are one hilarious mofo.
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But you won't. Because you have no leg to stand on.
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Do you really think they would seize a domain over FOUR SONGS?
If the warrant was issued under the pretense that the four songs were the ONLY cases of infringement, there might, maybe, be an issue, but the problem is that despite those songs being given to the site, they were still copyrighted material.
But that is moot, as they were not the only examples of infringement occurring on the site.
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Do you really think they would seize a domain over FOUR SONGS?
The issue is that this was to establish probable cause. If all four songs were sent by authorized players, that sorta undermines the entire probable cause argument, doesn't it? All of that would have been made clear if there were an adversarial hearing held. But there wasn't. Hence the lack of due process and a clear case of prior restraint.
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That's a big "if" on which to hang your hat, and one that is contravened by the affidavit.
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And the Government specified quite clearly at the beginning of the affidavit "I have not included in this affidavit the details of every aspect of this investigation."
The 4 songs were not the end-all, be-all in regard for the warrant request.
If any of the sites' lawyers are trying to hang their hat on that, they are most certainly screwed.
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The wording of that affidavit was intentional. Government lawyers know what they're doing; in his press conference Morton even spoke about how careful they were. Why someone would imagine that they wouldn't be is beyond me.
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ESPECIALLY when they answer no questions on the accuracy of these takedowns and don't even know the law regarding it themselves.
Oh, and if you have to have the MPAA/RIAA to say that these are bad laws? You got a problem.
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If they have such a huge body of evidence, shouldn't they have been able to find four examples that were actually infringing? And are you really saying it's appropriate otherwise?
Or, to put it simply, if these four songs are a representative sample of the larger body of evidence, it means the majority of the evidence is likely also bad. And if they aren't a representative sample, then isn't the affidavit an attempt to mislead the judge?
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Either way I disagree with the legal conclusions you've arrived to, just because I don't necessarily think Fort Wayne applies to copyright. There may also be some sort of loophole(although I think this is a very tenuous argument) where it's impossible to reach those people so posting somewhere is the only thing that is necessary.
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No more big pharma, now all the drugs will be sold by your friends, you know, they can promote it on facebook and twitter, and not worry about things like government approval! Get your weed, meth, and viagra knock offs on all the same street corner! Cut out the middle men! Get rid of all the horrible government regulation! Free the people, because you know that the information wants to be free!
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If you wanted a valid comparison to this scenario using drug sellers, it would be "I wonder if Masnick thinks that the corner pharmacy should be warned and the owner arrested for trial before they get shut down on the suspicion of selling counterfeit prescriptions?" And I can't speak for him, but I would say "YES" myself... They should really be proven guilty before they are treated as such, that's the root premise of our justice system.
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ahahahahahahahahahahahahahahahahahaha
OIC, so those drug guys are obviously breaking the law, but the sites that traffic in hundreds or thousands of illegal copies of music in full plain view on the web aren't just as "obviously breaking the law"?
That's a classic one, pal. Thanks.
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How does one know if the songs are "illegal"? Already different content companies have filed lawsuits in error, where it was later shown that the content company had, in fact, authorized the content.
It pains me to see someone so stupid struggle so valiantly to prove how little he understands.
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Seizing actual physical evidence that can be destroyed or hidden makes sense. We've said that before.
Why is i that you have so much trouble understanding basic concepts? It might explain why the bands you work with are failing. I've offered before, and I'll offer again: give us a call, and I'm willing to help your failing band do better.
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Actually they should in that case - although I would expect that they would be in prison already by then.
The object of the unannounced police raid would be to obtain evidence and/or to detain the suspects - not to seize the proceeds of crime.
Once arrested they would be entitled to due process within hours.
If the police simply came and took your car and didn't even tell you for two months then you would assume it had been stolen by criminals right?
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If I wasn't involved in illegal activity I would...
Nonetheless, the sites know exactly why their domain was seized, as ICE was nice enough to leave a nice notice on the front page of their website. :)
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The US is quickly showing that it can and will do whatever it wants, regardless of the laws in place to protect the innocent. I am scared for our future.
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Some of the U.S. citizens are equally scared, and equally despise our own government for it...
To the World: Please don't confuse U.S. Government Policy with the wishes of the U.S. People.
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People living under dictatorships,
they get to say the actions of their governments have nothing to do with them,
people in democracies who try to make that claim can expect to be told to grow up.
Your government isn't just your problem, it's your responsibility.
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Permission vs. forgiveness
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Everything is wrong with allowing them to defend themselves. I mean piracy! and Terrorism! oooohhhhh scared now aren't you ... Don't worry, we'll protect you from the pirate terrorists. Trust us.
-ICE
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COPYRIGHTINFRINGEMENT-Arrrrrrrrrrrrrrrrrrrr!!!!!! *KABOOM*
(Dateline-esque poignant question: How many more innocent copyrights have to be infringed by pirate terrorists?)
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pirate paedo-terrorists
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To report suspicious activity, call 1-866-347-2423.
Let's call and report them.
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What is this..
The DOJ firmly believes they do not need to do such things as follow the law; after all, they are the law. They don't need to ask to be forgiven since they maintain they are doing nothing improper. The DOJ is not on the side of American citizens unless the citizens are executives for entertainment companies.
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Is seizing sites legal? -> YES, seize
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V
NO, go to court
Is seizing sites declared legal? -> YES, seize
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NO, try to change the law
Is seizing sites declared legal? -> YES, seize
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V
NO
Blame the interns and try something else
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v........ .............................|
NO, figure out legality issue later/
(damn you regex!!!)
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v
NO, wait for the check to clear
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So in other words - they are GUILTY until proven innocent?
Yes, that's exactly what concept that is - no amount of spin can change that simple fact.
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I guess technically they are guilty until proven innocent, except for the fact that they were originally shown to have a high probability of guilt. Let's put this in a different situation, if there was someone dumping raw sewage into the local river is it realistic to wait until a trial is completed before you stop the dumping(preliminary injunction) or if you show that they're breaking laws at the beginning(almost no probability that they're doing it legally) is it reasonable to tell them to stop until the legal process is complete?
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The first amendment guarantees free speech and a free press. Raw sewage is an inappropriate analogy.
Over the course of the last several weeks, we have repeatedly cited Supreme Court precendent, such as Fort Wayne Books, for the proposition that speech must not be entirely suppressed on a mere ex parte showing of probable cause.
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Free speech and free press doesn't mean you can say anything you want without repercussion(see Libel, obscenity, fighting words, child porn, commercial speech).
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Nobody has argued otherwise. Why even bring that up?
The commenter above pointed you to Fort Wayne books. Why not look up that ruling.
All we're asking for is an initial adversarial hearing prior to an injunction.
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Sorry for going off on the free speech thing, I've just seen other people bring up free speech as a justification, and having not read or understood why there was a link between the two I thought it was a BS justification that people threw out.
As far as current law I think AP v. INS gives a good rundown of the fundamentals at work(and what would probably be a pretty good guess of where some courts would start with analysis), although the copyright(and it was misappropriation not copyright, but it was made up on the spot to rectify what was going on because of the framework at the time) and 1st amendment law has changed, it does a good job of giving the underlying policy concerns. I think you could also look to the underlying principles of the fair use doctrine and how courts have come out on preliminary injunctions (although I didn't agree with the decision the injunction from Sarah Palin on the first publication of some of the segments of her book).
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As has been pointed out repeatedly, the actual things seized here —the domain names— are not even allegedly material covered by a copyright registration.
Whatever justifications there may be for enjoining publication of presumptively copyrighted material at the request of the registered copyright owner—those justifications cannot apply to publishing information that is not only not registered, but further is not at all copyrightable material.
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Well, you're (1) wrong, and (2) talking about something that is immaterial to the seizures.
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In terms of the injunction, I think it's actually a pretty good example of copyright law trumping the freedom of press/speech, and why this injunction is not abridging the freedom of speech. As for the actual specifics, the court in the one situation probably screwed up(having not dug through every single blog post to research this, I will not comment on probability). It happens, but does that mean that every seizure is destroying free speech, is copyright/trademark infringement something that might be a means for the government limiting speech(i.e. does free speech outweigh the other legitimate concerns), those are the underlying concerns that you'd have to weigh against the economic concerns from not enjoining almost certain infringers.
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Read the affidavits. They did NOT argue contributory infringement, but direct infringement.
Throughout this thread, you keep making claims that we then have to tell you're wrong about.
Please read up.
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In that case, before any judgment on the merits of the obscenity charge, the ENTIRE bookstore was shuttered! Definitely not cool.
That isn't what is happening with the ICE seizures. After the US goes to court with evidence, a warrant is issued by a judge. Then a domain, merely one cog in a website's wheel, is seized.
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I AM THE LAW!
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DOJ
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Collection of evidence and the stopping of the crime in progress is only the first steps towards legal action. Seizing the domain stops the ongoing crime, and the case is built from there.
If you waited for an adversarial challenge for each of these seizures, these sites could be up for years until it wends it's way through the legal system, all the while illegal acts would continue and consumers would continue to be ripped off.
The government has it right on this one.
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Now if you want to try and equate this to some "police action" where they may instantaneously seize the car, then I would say that it could be something like one has been under police scrutiny for drug trafficking, they set up a sting operation, and the owner drives the vehicle with drugs in the car to the sting. Then, they would seize the vehicle for evidential purposes.
But guess what... There's no evidence in a domain name. None.
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This is basic stuff. You people here on Techdirt don't like it because you support piracy. Next.
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Now when are you going to do the same?
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So, go ahead, seize the domain. It does NOTHING, other than make the owner spend another $7.
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So why are you and Masnick so upset?
Hmmm?
See what you just did there? :)
What's being seized is evidence in the commission of a crime.
Happens all the time.
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How is the domain name evidence in the commission of a crime? You seem to keep not answering this.
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Try again and this time show where the domain name is EVIDENCE.
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Can you seriously be that stupid? Do you even understand whats being seized?
They aren't seizing the servers that actually HOST the content. they're just making it so www.ICESEIZEDTHISPAGE.com points to the that little warning page they have, instead of the actual server.
Let me demonstrate.
To access the TD homepage, you type in www.techdirt.com.
The request goes out to what we call a DNS.
They have a big phonebook that says Techdirt.com = 208.53.48.33.
Your request then gets forwarded on to the server located at that address. it then gives you back the Techdirt home page.
What ICE is doing, is making it so that TechDirt.com points to a different IP address and server.
If they seized TD's domain today, you can still access the site by going to 208.53.48.33 in your browser.
Go ahead, try it.
Do you see the problem now? No actual evidence is being siezed. The servers are still up and running, you just don't have a nice URL that points to them any more.
And since a lot of sites that were siezed are based OUTSIDE the US, there never WILL be any kind of trial, because US law doesn't apply to them!
So basically, the feds are trying to make the bad stuff go away, by putting their hands in front of your eyes. Yeah, thats going to be real effective.
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The vast majority of serious posting and discussion centers around the implications and problems with copyright and the abuses of those who seek to twist the law into their own vision rather than what it actually is...
Just saying that everyone who objects to or finds fault with the current legal system are pirates ignores their fundamental right to express that opinion and seek appropriate redress from their Government; so your pithy assertions that they only say so because they are criminals is beneath contempt...
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Exactly what Masnick does on this site, and what copyright infringers do every day.
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I wonder why you think this supports your argument.
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You dont get out to Jersey (or the east coast) much, do you? They will impound your car ANY time they can. They have a cozy relationship (read: kickbacks and bought legislators) with the towing companies that charge such exhorbitant rates, in many cases the cars never get out of pound. Guess what then? They get to keep them and sell them. A citizen loses his car over a $50 registration and the state gets several thousand dollars. Most states arent like this, but the ones that are are corrupt to the core.
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Why don't you ever answer any of these questions?
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This is like seizing a drug dealer's phone number. And nothing else.
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More like getting him de-listed from the phone book. But he keeps the number.
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Path of least resistance
Why should they bother with due process? That takes work filing all those briefs, issuing summons, assuring proper delivery of said summons, scheduling dates, dealing with responses.
By and large, the only reason that people subject themselves to jumping through hoops is because the alternative to jumping through those hoops is worse than the hoop jumping.
The FBI, TSA, NSA, DHS have been shown time and time again by Congress that there is NO downside for them to ignore proper channels or do things in a way that even vaguely conforms with due process.
So why should they bother? There will be no repercussions to their actions. Not so much as a slap on the wrist.
The have shown, by deeds and actions, that they feel that they know what is best for the rest of the citizens of this country and laws to the contrary be dammed. The are doing it for OUR good after all, so they feel that it gives them the right to engage in pretty much any illegal activity they choose.
Laws are for the ignorant masses, not for the people we charge with upholding and enforcing those laws. For them, they are merely suggestions to be ignored as needed in order to insure the common good.
The long term consequences of this sort of behavior are chilling. When you don't punish someone for stealing they don't steal less . . .they steal MORE. These people are not being punished for any of their actions. This will embolden them to increase both the frequency and the egregiousness of their transgressions against the laws of the country and the rights of it's citizens.
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Except when Congress has, in time of rebellion or invasion, suspended the Great Writ of habeas corpus, then indefinite detention without speedy trial is unconstitutional.
“Pre-trial&rdqo; imprisonment is not made constitutional merely by some official's press statement that the government might hold a trial someday.
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And what exactly are these "serious questions about the legality" in these counterfeit goods cases? I understand that you don't like the seizures in general, but what specifically is illegal about them? Please cite the precise legal source for your claim that an adversary hearing is necessary before the domain name of a site that sells counterfeited goods may be seized. Your unsupported, conclusory claims of "no due process" are getting rather old. I know you can't prove there is "no due process" in these in rem forfeiture actions because you are simply wrong. But rather than learn and understand what the law actually is, you just keep saying that it's illegal. Your mind is so completely closed that you can't accept the fact that seizing property under a court order that is used to commit crime is completely legal and completely comports with due process. How you can claim to have an open mind defies all logic.
I don't know if this is the case or not, but how does ICE know that these sites did not believe they were selling legitimate products?
Really? Is that the best you can do? Whether or not the site operators believed that they were not breaking the law is irrelevant to the legality of the seizures. Besides, do you think the guy selling $20 "Rolexx" watches from China is somehow a victim of fraud himself? Your need to defend these pirates is absolutely disgusting. I expect no less from you, though. Anything to defend the pirates, right? Somehow "piracy is not OK," yet you will go to great lengths to defend it using arguments that make no sense, all the while ignoring all other arguments to the contrary. The depth of your hypocrisy is for all practical purposes bottomless, and your denial of being a pirate apologist is a ridiculous lie that everyone who looks at can see right through.
We all know that you do not think that "piracy is not OK." Why not just fess up?
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Bias much?
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I've written multiple blog posts with detailed cites.
http://www.techdirt.com/articles/20101229/01381312444/yes-legal-technical-errors-homeland- securitys-domain-seizure-affidavit-do-matter.shtml
Why pretend I have not?
I know you can't prove there is "no due process" in these in rem forfeiture actions because you are simply wrong. But rather than learn and understand what the law actually is, you just keep saying that it's illegal. Your mind is so completely closed that you can't accept the fact that seizing property under a court order that is used to commit crime is completely legal and completely comports with due process. How you can claim to have an open mind defies all logic.
And yet, when I have presented the evidence you attack me with unfounded assertions and blatant lies and attacks on my character. Do you think that's convincing over the actual evidence of what the case law says?
I'm sorry that you disagree with my analysis. Thankfully, we're about to see what real lawyers in real courts have to say about this. You'll see the details soon, but many of the previous domain seizures are about to be fought in court, and there are some very impressive lawyers involved.
Really? Is that the best you can do? Whether or not the site operators believed that they were not breaking the law is irrelevant to the legality of the seizures.
Wait, you're actually suggesting that innocent until proven guilty is not a good standard to use?
We all know that you do not think that "piracy is not OK." Why not just fess up?
Because, despite your insipid need to claim otherwise, I do not think piracy is okay. How difficult is it for you to separate the messenger from what's happening? It's a little scary.
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LOL. You're such a slimy coward, Masnick.
No biggie, tho. Karma is the most powerful force on Earth, and you've been sentenced to a never ending dose of it.
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Seem to me, that persons advocating end runs around the Constitution and more draconian laws should be the ones worried about Karma.
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This comment practically drips with slimy irony...
Why don't you tell us who you are and what you do, like Mike does, so we can put your comments into the correct perspective. Or are you the real coward?
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And I have Karma on toast. How do you like yours?
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-- Who looks more cowardly?
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http://www.techdirt.com/articles/20101229/01381312444/yes-legal-technical-errors-homeland- securitys-domain-seizure-affidavit-do-matter.shtml
Why pretend I have not?
Once again you duck the issue. Please explain the exact legal reasoning for why the seizure of these suspected trademark-infringing domain names violates due process. No links, no waffling,,, the exact analysis. If you cannot give this analysis, then admit it.
And yet, when I have presented the evidence you attack me with unfounded assertions and blatant lies and attacks on my character. Do you think that's convincing over the actual evidence of what the case law says?
Show us the exact case law to which you are referring. Otherwise, you're blowing smoke.
I'm sorry that you disagree with my analysis. Thankfully, we're about to see what real lawyers in real courts have to say about this. You'll see the details soon, but many of the previous domain seizures are about to be fought in court, and there are some very impressive lawyers involved.
What analysis? You do realize that trademark infringement is different than copyright infringement, right?
Wait, you're actually suggesting that innocent until proven guilty is not a good standard to use?
They are innocent until proven guilty. That does not mean that the domain names cannot be seized prior to an adversary hearing. Try again.
Because, despite your insipid need to claim otherwise, I do not think piracy is okay. How difficult is it for you to separate the messenger from what's happening? It's a little scary.
Piracy's not OK, yet you defend it every single chance you get. Do you think your readers are stupid?
Look, Mike, you can put this to rest right now. Prove right here, right now that these seizures violate due process.
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You would think ..
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Summation
- Terry Hart says it's lawful, so it must be.
- ICE has seized more (and more) domain names, so it must be lawful (even though they haven't waited to see if the first ones actually are lawful)
- A judge signed (rubber stamped) them and judges NEVER make mistakes.
- And the best one yet: These are legal, trust me, no need to look deeper into these, trust me, this is for YOUR protection, trust me.
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Beyond Copyright now...
fears33.com
gejotyz.com
gidenig.com
gland15.com
kosapo.com
nifexob.com
mooo.com
That last one on the list is a FreeDNS host and ICE made it seem like all users of it (83,000+ subdomains) were pedophiles, when there was probably only one bad apple on the service. ICE unseized the mooo.com domain on Sunday and decided not to tell the public about it in Monday's press release.
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gland15 ends up here... I suspect that mooo.com was providing dynamic dns services for these people (plenty of torrent stuff as well).
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These other seizures have only really been a few at a time. They add up to over 125 now, but that's small in comparison to 83K subdomains on a hosting provider. It's chilling for all free/shared hosting providers and users.
Imagine waking up one day and your Facebook, Twitter, Wordpress, or Blogpress page is seized due to child pornography... Here's one user's reaction:
http://stop-error.xanga.com/741136585/from-the-blithering-idiots-department/
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http://www.dhs.gov/ynews/releases/pr_1297804574965.shtm
Are they just going to try and sweep the mooo.com debacle under the rug?
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ICE knew they seized that domain name without enough evidence to seize it, and the only reason it was given back was when they realized the backlash would be too high if they left it like that. The fact they were able to seize it in the first place is incredibly disturbing.
Hell, the even the name of this new operation is disturbing. "Operation Protect Our Children"? Seems like their next move is to play the "but... but.. think of the children" card to Congress.
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ICE took it down, likely because a single account holder was doing something with child pornography. Then ICE gave it back because 83,000+ wrongly applied child pornography seizure notices would be bad for them in the press as well in the courts. Users reputation and lives were put at stake. Ever heard of vigilante justice when it comes to pedophiles?
FreeDNS's news page talks about the seizure and how the owner never allowed that stuff. ICE could have contacted him to remove the subdomain. Instead they went to Verisign behind everyone's back. If ICE can't tell the difference between a user of a service and the service itself, why should they be given the power to seize domains???
"FreeDNS(sic) has never allowed this type of abuse of its DNS service."
https://freedns.afraid.org/news/
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Quick AC... make out an argument for how taking away the domain name while not doing anything to deal with the apparent crimes helps children.
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But we are not talking about shutting down the site, we are talking about taking a domain name which as has been discussed here already in other contexts, does absolutely nothing to shut the site down, nothing to seize the servers, but does mean that they won't know what name it will be going by within a few hours or days. All the while, if children are being abused, they will still be being abused.
But way to miss the point and try to make yourself out as the moralist while you have your head in the sand for no apparent reason, other than perhaps, to block out the sure and certain knowledge that nothing has been done to prevent children from actually being abused.
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The pretence is certainly easier and cheaper, but doesn't help anyone: see the catholic church for how successful an approach this is.
Genuinely addressing the problem, more costly, more time consuming and more distressing but most people who weren't intrinsically wired to be moronic antagonists would prefer that approach as it actually helps people who are being victimised and exploited.
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Second, and more fundamentally, of course seizing the domain names has an effect on these sites' ability to drive traffic to the site, sell ads, and profit from child porn. Torrent-finder lost 90% of its traffic almost immediately (link). I can't believe I actually have to point that out to you.
Any other arguments in defense of leaving the poor child porn proprietors alone?
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you thank me for clarification before then implying that anything or indeed everything I said was in defense of "leaving poor child porn proprietors alone"
If law enforcement were winding up an investigation they would be seizing servers and arresting people, leaving absolutely no need for the domains to be seized.
As they are only talking about seizing domains, then that is all we can assume they are doing right now.
Which means whatever children are being exploited are still being exploited and nothing has actually changed, but cretins like you will be satisfied that "something is being done" and accuse anyone who feels that actual abuse is considerably more important than domain names of supporting the exploitation of children.
So, Torrent-finder lost 90% of it's traffic and to you that's a win?
So the 90% it lost no longer download torrents?
Clue you in, they didn't stop downloading files, they just got them elsewhere, I don't know where, but you might.
If those other sites get shut down, those who would download files will go elsewhere, eventually, you won't know where or how but it will still happen.
Exactly the same applies to child porn websites, monitor them, track the users, track children at risk and get them out of there would all be good things.
Seizing the domain names while the rest continues, moronic.
It's giving up your best access for some headlines.
Guess it's just the headlines that count with you.
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Zing! God you're good.
So your evidence that law enforcement isn't doing anything else to investigate and/or prosecute those involved with these sites is... that no servers have been seized yet? Got it. Very persuasive.
And your follow-up argument is that shutting down some child porn sites means people will go elsewhere? That's a success in my book. Do you expect any law enforcement action to immediately eliminate every act of that specific criminal activity? Good luck with that.
Honestly, you're arguing in favor of child porn sites because you think it doesn't act as a magic bullet in wiping out all of the criminal activity at once? Really, it's okay to say you are wrong sometimes.
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1) I am not arguing in favour of child porn sites, I am arguing about the best way of dealing with them to protect children from abuse and exploitation and to bring those who do abuse and exploit children to justice.
2) I am not opposed to the seizure of these domain names because it doesn't act as a magic bullet in wiping out all of the criminal activity at once, but because it doesn't wipe out any criminal activity at all.
You are arguing that a fraud that gives the impression of tackling child abuse, while not doing anything of the sort and which would actually hamper the ability to discover abusers and their victims is a good and useful thing, when it clearly is nothing of the kind.
Just like when the Catholic church would move an abuser from one parish to another, that was doing something!
It just wasn't useful or helpful and the abusers replacement had a fair chance of being an abuser moved from another parish to take up where the first one left off.
" Really, it's okay to say you are wrong sometimes."
You should try it.
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What?! Shutting down 90% of a site's traffic or more has NO EFFECT on the amount of ad revenues coming into a proprietor of one of these sites? Let's walk through this in baby steps for you: if law enforcement shuts down the domain, users can't visit as easily, owners can't make as much money... law enforcement shuts down significantly more sites and the owners continue make less money, don't buy ads, thereby reducing funding going toward exploitive content... and, hopefully, the net result is less content produced thereby helping children. AT THE SAME TIME, law enforcement continues to investigate and prosecute those who use the sites, further curbing the unlawful activity.
How you can argue against these seizures is beyond me.
which would actually hamper the ability to discover abusers and their victims
Where do you come up with this stuff? The servers, including all of the data are still there, remember? So how is any investigation hindered? You think law enforcement will forget where to find it without a domain name? Or that they haven't mapped and saved the entirety of the sites' content already?
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2 points,
a) seizure of the domain names is not a remedy at all
primarily because
b) it does not get the websites down, the websites remain up
but now the users of the website know to hide, destroy or otherwise make unavailable any evidence that there might be.
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There are perils with having a sub domain site and this is an apt demonstration of such.
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These seizures for the most part have been executed by newer agents that don't do enough research. They are probably told by their superiors what to seize and when it's due (every major holiday and event). If you go back and read the seizure warrant from November, there's a page in there where the agent communicates with RapGodFathers' ISP and twice states he didn't disclose and information to the ISP about the investigation. Why are they so afraid of working with ISPs? Have their big media funded IPR Center "teachers" told them not to?
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This site, despite my complete disagreement with it's owner, is well maintained. I doubt such a thing could happen. It's seriously difficult to even imagine such a scenario.
I'm not sure what legal responsibilities afraid.org have over what happens on their sites; that's obviously a lot of ground to cover for them, but I'm sure their TOS does not allow porn, so the matter should have been dealt with through them.
While I realize that mistakes happen, whoever was in charge of the mooo.com investigation at ICE should be fired tomorrow.
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http://www.techdirt.com/articles/20110214/16451913091/homeland-security-seizes-another-18-domain -names-with-no-adversarial-hearings-due-process.shtml#c1594
They aren't shutting down anything. they're just removing the name from the phone book. meanwhile, the sites are still perfectly accessable to anyone with the IP address.
And since child pornography is such an underground topic, I can tell you they probably don't use domains, instead hiding their wares behind IPs and not letting the web-spiders crawl them.
So again, the feds are trying to make the bad stuff go away, by putting their hands in front of your eyes.
Hear no evil, see no evil, there must be no evil, right?
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Then one day when the new COICA bill goes in front of Congress they will say "You wouldn't stop us from protecting the children would you?" instead of crying the message "Big media is losing billions of dollars here!" which has been getting the most backlash.
Well played ICE, well played...
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Strip searching American citizens in airports, flying in, or out of america. Now seizing domain names for questionable reasons.
What kind of twisted reasoning is this ? Where an organization is put into place for "Homeland security", and yet, seems to be practicing the complete opposite ? Not to mention the fact that, I do not even recall being given the opportunity to vote on said groups existence at all.
Yeah, so much for freedom, and the American way of life . . .
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Where can I sign up?
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Re: Where can I sign up?
I think it's more like a country club or a yacht party with the appropriate official.
/sarcasm, I hope
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