Rep. Lofgren Tells Seized Sites They Should Sue The Gov't For Defamation

from the good-for-her dept

Mon, Mar 7th 2011 7:41am — Mike Masnick

On Friday, we posted about Rep. Zoe Lofgren challenging IP Czar Victoria Espinel on the legality of Homeland Security seizing domains without any real due process (where she did a wonderful job shooting down Espinel's empty claim that a magistrate judge's rubber stamping in the absence of adversarial hearing represents any kind of "due process"). About an hour after I posted that, I actually had a chance to chat with Lofgren for a few minutes at the High Tech Law Institute's Symposium about Section 230. Lofgren was happy to hear that lots of folks appreciated her words, and expressed dismay that others in Congress really don't understand (or care) about the issue.

When it became her turn to talk on stage, she doubled down on her comments earlier in the week, and explicitly said that she thinks that the innocent sites taken down in the mooo.com seizure should sue the government for defamation. After all, she points out, the government falsely plastered 84,000 websites with claims that they were associated with child pornography -- and did so with "seals of approval" from Homeland Security and the US government. It will be worth seeing if anyone follows through on this, but it's nice to see another elected official horrified by Homeland Security and the Justice Department running wild with these domain seizures.

I have no idea if any of the sites in question actually will do this, but it might finally help get some attention to what the government is doing in seizing domains without any actual due process.

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: defamation, domains, due process, first amendment, ice, seizures, zoe lofgren

77 Comments

If you liked this post, you may also be interested in...

Reader Comments

Subscribe: RSS

View by: Time | Thread

velox (profile), 7 Mar 2011 @ 7:07am

Lawsuit = publicity.
Doubtless when attention is focused on ICE's activity, more people will actually start thinking about the issue and recognize it for what it is:
...Abuse of Government Power

The lack of due process won't go unnoticed.
Despite what apologists have been saying here-->That the court order is all the due process needed, the common person won't believe that once they heard what happened.
[ link to this | view in thread ]
The eejit (profile), 7 Mar 2011 @ 7:48am

Re:
Moral outrage for the people? I like it!
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 7:55am

Sovereign immunity precludes such a claim
As far as I know, every circuit in the U.S. has held that defamation charges are exempted from claims under the Federal Tort Claims Act. 30 seconds of research on Rep Lofgren's part or on Techdirt's part would have gone a long way.
[ link to this | view in thread ]
Joe Publius, 7 Mar 2011 @ 8:02am

If we can waste my taxpayer dollars creating these stupid seizure rules, we can just as well waste them on having the government defend itself against people who were unjustly smeared by those stupid rules.

It becomes one more way to protest.
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 8:07am

"but it might finally help get some attention to what the government is doing in seizing domains without any actual due process."

Now if only mainstream media cared... how come we don't hear anything about it from them?
[ link to this | view in thread ]
keiichi969 (profile), 7 Mar 2011 @ 8:07am

Re: Sovereign immunity precludes such a claim
30 more seconds on your part would reveal that the exemption is only valid if they government officials are exercising due care.

They whole point is that they're not.
[ link to this | view in thread ]
Shon Gale (profile), 7 Mar 2011 @ 8:11am

Sounds like a class action suit.
[ link to this | view in thread ]
Gwiz (profile), 7 Mar 2011 @ 8:11am

Re:
Now if only mainstream media cared... how come we don't hear anything about it from them?

That's simple. Follow the money trail to who actually owns the mainstream media.
[ link to this | view in thread ]
CJ (profile), 7 Mar 2011 @ 8:14am

oh great
Mad at your rivals? Are they making more money than you? Did someone call you a inept moron online? Want to get even? Hackem! Let the Gov take the blame in the process! Want to see how it works? see these sites! http//... Cool huh! Now gimme yer money!
[ link to this | view in thread ]
el_segfaulto (profile), 7 Mar 2011 @ 8:16am

Re:
I really wish you were right, but in talking to my parents (in their 60's) and others of their generation I believe the conversation would go something like this:

Government: We shut down these sites because they were supporting terrorism/distributing kiddy porn/hate our freedom.

Fox News Viewers: Forgive us! Think of the children and please don't let the terrorists win!
[ link to this | view in thread ]
Gwiz (profile), 7 Mar 2011 @ 8:22am

Re: oh great
Not that I disagree with your message, but for some reason your comment sounded like the TV ad in the Ghostbusters movie.

I almost thought it might end with a "Who ya gonna call?"
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 8:27am

Congrats Mike, you have gotten played by a grandstand politician. She wants the attention you are giving her, and your chat with her only empowers her further.

Too bad that the sub-sites of Moooo.com don't really have legal standing (as it would only be moooo.com that would have that right).
[ link to this | view in thread ]
Chris Rhodes (profile), 7 Mar 2011 @ 8:30am

Re:
Congrats Mike, you have gotten played by a grandstand politician.

How so?

Too bad that the sub-sites of Moooo.com don't really have legal standing (as it would only be moooo.com that would have that right).

Citation, please.
[ link to this | view in thread ]
fogbugzd, 7 Mar 2011 @ 8:47am

Not libel
The sites should be suing for violation of their constitutional rights. That is the real issue.
[ link to this | view in thread ]
velox (profile), 7 Mar 2011 @ 8:51am

Re:
Funny, Mr. AC. You are frequently here calling any politician who disagrees with you a grand-stander, but I don't see you accusing John Morton of grand-standing when he's up there in front of cameras telling us how he's been keeping us safe at night from cyber-terrorists, child-pornographers, pirates and counterfeiters.
Unlike Morton, neither Lofgren or Wyden are busy calling press conferences. They've just been standing on principle in the course of their regular Congressional activities.
You must be frustrated that you haven't been able to pay them to bend their principles so they will do what they are told.
[ link to this | view in thread ]
Not an Electronic Rodent (profile), 7 Mar 2011 @ 8:55am

Re:
Too bad that the sub-sites of Moooo.com don't really have legal standing (as it would only be moooo.com that would have that right).
It's a theory and I don't know the legalities but that hardly sounds right. It sounds to me (analogy time) like saying that if I rent a Car and someone smashes into it only the company I rented the car from can sue them because they own the thing what was actually hit and I can't sue for my injuries because I was merely inside the damaged property. LIke I say, doesn't sound right to me, but of course logic could apply differently here because of the word "internet" involved....
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 9:09am

Re: Re:
See the legal barriers on this one are huge.

First off, if there were any users of Moooo.com that were pushing child porn (or other illegal acts), then it is hard to claim the government's actions to be entirely unjustified. Further, there was only one domain taken down (for a short time), not 84,000. Those 84,000 people have a contract with moooo.com, and the liablity goes there. If moooo.com was not careful and allowed child porn purveyors onto their system, which lead to a shutdown, albeit short term, well, the liablity would shift to moooo.com, no?

Basically, the users of moooo.com services would have to show how their were individually damaged, and prove that it isn't as a result of moooo.com's actions (or inactions). That would be almost impossible to prove.

Velox: Unlike Morton, neither Lofgren or Wyden are busy calling press conferences.

I have to disagree here. Lofgren is on a panel asking questions in public, and then appears at a "section 230 symposium". I have to say that this sounds like a politician trying to grand stand and get attention and support from a certain group.

Seems like there is plenty of hot air coming out of Washington, as always.
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 9:24am

Re: Sovereign immunity precludes such a claim
As far as I know, every circuit in the U.S. has held that defamation charges are exempted from claims under the Federal Tort Claims Act. 30 seconds of research on Rep Lofgren's part or on Techdirt's part would have gone a long way.

But that would go against Mike's apparent mandate which is to pretend to be a blog about legal things without actually understanding the law of which he speaks.
[ link to this | view in thread ]
Another User, 7 Mar 2011 @ 9:36am

Re: Re: Re:
If the government had even spent 5 minutes to call moooo.com and requested that they remove a site that had illegal content then this whole issues would have never existed. Also with your logic then ICANN is responsible for anything that uses a top level domain name and if we put that type of pressure on web-hosts then it will become a lot more expensive to host a website.
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 9:37am

Re:
Congrats Mike, you have gotten played by a grandstand politician. She wants the attention you are giving her, and your chat with her only empowers her further.

Funny how it's only grandstanding if Mike disagrees with their position. If he agrees with them, it's "Good for her!" and "You go, man!" She's grandstanding, plain and simple.

Too bad that the sub-sites of Moooo.com don't really have legal standing (as it would only be moooo.com that would have that right).

Right, and that's a distinction that Mike doesn't seem to understand. As a subdomain of mooo.com, you're only a licensee, not an owner. You don't have all of the rights you would have if you set up your website with a bona fide ICANN-accredited registrar.
[ link to this | view in thread ]
The eejit (profile), 7 Mar 2011 @ 9:38am

Re: Re: Re:
And? She's doing what 99% of Con-Gress are doing, only on a current tech issue.

And, whilst those subdomains were shoddily organised, even a modicum of exploration would have cleared all but the one subdomain should have been left well alone. A false accusation in written form is libel, plain and simple. There are no extenuating circumstances in this case. "We didn't know" is not an excuse for an abuse of power.
[ link to this | view in thread ]
keiichi969 (profile), 7 Mar 2011 @ 9:41am

Re: Re: Sovereign immunity precludes such a claim
http://www.law.cornell.edu/uscode/28/usc_sup_01_28_10_VI_20_171.html

Emphasis mine.

� 2680. Exceptions

The provisions of this chapter and section 1346 (b) of this title shall not apply to�
(a) Any claim based upon an act or omission of an employee of the Government, exercising due care, in the execution of a statute or regulation, whether or not such statute or regulation be valid, or based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of a federal agency or an employee of the Government, whether or not the discretion involved be abused.

Furthermore:

(c) Any claim arising in respect of the assessment or collection of any tax or customs duty, or the detention of any goods, merchandise, or other property by any officer of customs or excise or any other law enforcement officer, except that the provisions of this chapter and section 1346 (b) of this title apply to any claim based on injury or loss of goods, merchandise, or other property, while in the possession of any officer of customs or excise or any other law enforcement officer, if�
(1) the property was seized for the purpose of forfeiture under any provision of Federal law providing for the forfeiture of property other than as a sentence imposed upon conviction of a criminal offense;
(2) the interest of the claimant was not forfeited;
(3) the interest of the claimant was not remitted or mitigated (if the property was subject to forfeiture); and
(4) the claimant was not convicted of a crime for which the interest of the claimant in the property was subject to forfeiture under a Federal criminal forfeiture law..[1]

[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 9:57am

Re: Re: Re: Re:
The issue is that the domain registry doesn't have control of third level domains, only second level. Legally, there is only one site, moooo.com, and they are reponsible for what is on their site after that. The government pulled the plug they had control of, which is the domain.

What moooo.com chose to do in sub-domaining isn't really the fed's issue. Any claims would have to come from moooo.com themselves, not the end users, as they had no control over the process.
[ link to this | view in thread ]
vivaelamor (profile), 7 Mar 2011 @ 9:57am

Re: Re: Re:
"First off, if there were any users of Moooo.com that were pushing child porn (or other illegal acts), then it is hard to claim the government's actions to be entirely unjustified."

By that logic they could 'justifiably' shut down Google or as much of the internet as they are able. If it effects one instance of illegal content then you seem to suppose the collateral damage to be meaningless.

"there was only one domain taken down"

You're still refusing to acknowledge the simple technical fact that a sub domain is still a domain. Yes, the distinction is important, but it cuts both ways. Taking down .com could be interpreted as 'just one domain'. The fact that it's a top level domain makes it no less a domain than the fact that these were sub domains. You may have a valid reason for the distinction, but use of the word domain isn't it.

"Those 84,000 people have a contract with moooo.com, and the liablity goes there."

Moooo.com presumably have a contract with a registrar, who presumably has a contract with VeriSign. Is there a legal basis for the liability stopping with moooo.com rather than the registrar or VeriSign? Again, why stop at moooo.com rather than .com?
[ link to this | view in thread ]
MrWilson, 7 Mar 2011 @ 10:03am

Re:
Because small businesses are too small to succeed (as opposed to too big to fail) and they weigh the same as a duck. Being accused is the same as being guilty.
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 10:06am

Re: Re:
Right, and that's a distinction that Mike doesn't seem to understand. As a subdomain of mooo.com, you're only a licensee, not an owner. You don't have all of the rights you would have if you set up your website with a bona fide ICANN-accredited registrar.

Ahh, that's it! That's why the government can take over those sub-domains, claim that they are in violation of some law when it's not true and get away with it. Because you know, just because you are on a subdomain, you can be accused of anything by the government.

By your logic, anyone renting a room in a building that is owned by an alleged criminal, say, a check forger, is also a potential "criminal" in the eyes of the government. The government can evict them, confiscate their belongings and claim they are a criminal while neither charging nor arresting them and then just say "oops, just kidding!" and move on.
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 10:13am

Re: Re:
Exactly. Keep bitching on techdirt, it'll change the world.
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 10:22am

Re: Re: Re: Sovereign immunity precludes such a claim
Interesting, thanks. Wasn't the interest of the claimant remitted?

I don't think there is a defamation case here because there was no failure to exercise due care. The mooo.com domain name was rightfully seized, and the notice in question posted, via proper court order. The fact that they returned the domain name and took down the notice, I believe, was not for legal reasons. It was for political reasons--they didn't want the bad press.

I suspect too that there is some kind of judicial immunity for the content of the notice, but I'm not really sure.
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 10:24am

Re: Publicity
The problem here is that publicity cuts both ways.

By suing them for defamation, you are making public that you were accused of that. And given how many people think accused of doing it = you did it, you can see the problem here.
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 10:28am

Re: Re: Re:
Not at all. If I lease an apartment in a complex, and that complex owner gets in trouble with the law and has the complex seized and forfeited, I can be put out on the street, even if I've done nothing wrong. I'd have an action against the complex owner for damages.
[ link to this | view in thread ]
Mike Masnick (profile), 7 Mar 2011 @ 10:28am

Re: Re: Re: Re: Re:
The issue is that the domain registry doesn't have control of third level domains, only second level. Legally, there is only one site, moooo.com, and they are reponsible for what is on their site after that.

This is simply untrue, as the ENTIRE CONFERENCE on Friday at which Lofgren appeared at discussed. Section 230 protects mooo.com from liability of their users, as has been explained directly to you for years.

Why you chose to deny this (and why AJ as an AC supports you in this -- since he definitely knows better) I do not know.

What moooo.com chose to do in sub-domaining isn't really the fed's issue. Any claims would have to come from moooo.com themselves, not the end users, as they had no control over the process

Again, this is totally false as a matter of law.

Please try again.
[ link to this | view in thread ]
Mike Masnick (profile), 7 Mar 2011 @ 10:30am

Re: Re: Re: Re: Sovereign immunity precludes such a claim
The mooo.com domain name was rightfully seized, and the notice in question posted, via proper court order.

Yikes. I don't think I've seen *anyone* claim that it was rightfully seized. Even ICE admits they screwed up. Do you really want to stand up for the wholesale censorship of 84,000 sites without cause by the US gov't? Really?

You don't really mean to do that. You can just admit you made a mistake, like ICE did, and we'll just let this matter pass.
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 10:37am

Re: Re: Re: Sovereign immunity precludes such a claim
I'm looking at the FTCA, and you're missing the exception under (h).
The Federal Tort Claims Act (�FTCA�) bars actions against the United States for wrongful use of civil proceedings and defamation. Claims �arising out of ... libel, slander, misrepresentation [or] deceit� are excepted from the United States's general waiver of sovereign immunity. 28 U.S.C. � 2680(h). Thus, defamation suits against the United States are prohibited. In fact, cases from other circuits make clear that an individual who is defamed by a federal employee acting within the scope of his or her employment has no remedy due to the protections afforded by the Westfall Act and the FTCA. See B & A Marine Co., Inc. v. American Foreign Shipping Co., Inc., 23 F.3d 709, 714-715 (2d Cir.1994); Aviles v. Lutz, 887 F.2d 1046 (10th Cir.1989).
Brumfield v. Sanders, 232 F.3d 376, 382 (3d Cir. 2000).

No soup for you.
[ link to this | view in thread ]
Anonymous, 7 Mar 2011 @ 10:39am

Porn Sites
Port sites often insert themselves into innocent computer sites. Even a government lab computer was used once.

Porn is big business and Kiddie Porn is sometimes business and sometimes hobby, by pervs who have learned to band together to publish their stuff for their group.

If you want to talk about a group that really collaborates, it's the kiddie porn pervs.
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 10:41am

Re: Re: Re: Re: Re: Sovereign immunity precludes such a claim
LOL! No, I mean it. I'm sure I'm in the minority around here with this view. :)

I liken it to an apartment complex that gets seized because the owner got in trouble with the law. The lessees can be put out on the street, though they would have an action against the complex owner for damages.
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 10:43am

Re: Re: Re: Re:
Wouldn't the complex only get seized if the they could prove that the complex owner was part of the problem. By this logic they would have to prove that moooo.com was also complicit for them to be able to seize the whole domain. Since they went and put it back up that seems to be like they couldn't prove that. A better example on that would be for them to seize a whole apartment complex then have to give it back to the owner because the owner was not involved. What would happen to the tenets in that situation? Would they get compensation from the government for incorrectly seizing property?
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 10:47am

Re: Re: Re: Re: Re: Re:
That's an interesting point about Section 230 protecting mooo.com, Mike. I'll have to think about that one...
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 10:54am

Re: Re: Re: Re: Re: Sovereign immunity precludes such a claim
ikes. I don't think I've seen *anyone* claim that it was rightfully seized.

Actually, it was seized by a court order, and once they realized that implications beyond the seizure, they turned it back on - and certainly got the moooo.com admins to wake up and take care of the issues on their domain.

"rightfully" doesn't mean "they got it right", it means correctly under the law.

You don't really mean to do that. You can just admit you made a mistake, like ICE did, and we'll just let this matter pass

No mistake, you took the world "rightfully" the wrong way. I am sorry if you don't understand english.
[ link to this | view in thread ]
keiichi969 (profile), 7 Mar 2011 @ 11:05am

Re: Re: Re: Re: Sovereign immunity precludes such a claim

a federal employee acting within the scope of his or her employment

So if its found that it is NOT legal for ICE to be siezing domains, then these actions fall OUTSIDE the scope of employment.

Also, that ruling applies to EMPLOYEES of the government, not the agencies themselves.

In addition, the government can waive sovereign immunity for the agency once the case is heard.
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 11:07am

Re: Re: Re: Re: Re: Re:
Looking at Section 230, it specifically states: "Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of Title 18, or any other Federal criminal statute."

So there's no effect on Chapter 110, relating to sexual exploitation of children. I'd have to do more research, but I think the exception for Chapter 110 is where your Section 230 argument will break down.
[ link to this | view in thread ]
velox (profile), 7 Mar 2011 @ 11:08am

Re: Re: Publicity
"how many people think accused of doing it = you did it, you can see the problem here."
That might be true if only 1 or 2 sites were falsely accused.
I don't think even the casual observer is going to be confused when 84,000 people appear to have a viable claim.
[ link to this | view in thread ]
Eugene (profile), 7 Mar 2011 @ 11:12am

Re: Re: Re: Re: Re: Re: Sovereign immunity precludes such a claim
You can liken it to a cow jumping over the moon if you want, that doesn't mean you have any idea what you're talking about.
[ link to this | view in thread ]
velox (profile), 7 Mar 2011 @ 11:12am

Re: Re: Re: Re: Re: Re: Re:
So what you're saying AJ...er... AC
Is that the Feds have a safe-harbor against having to worry about safe-harbors, so long as they are chasing CP?
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 11:16am

Re: Re: Re: Re: Re: Sovereign immunity precludes such a claim
So if its found that it is NOT legal for ICE to be siezing domains, then these actions fall OUTSIDE the scope of employment.

If the seizures are ruled to be unconstitutional, those seizures were still done by people acting within the scope of their employment.

Also, that ruling applies to EMPLOYEES of the government, not the agencies themselves.

But only people can defame other people. Regardless, the quote is explicitly clear that "defamation suits against the United States are prohibited."

In addition, the government can waive sovereign immunity for the agency once the case is heard.

They could, but why would they?
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 11:18am

Re: Re: Re: Re: Re: Re: Sovereign immunity precludes such a claim
That's correct. I'm using the word "rightfully" to mean by proper authority of law.

The fact that ICE returned the seized domain name is not proof that the seizures were not done rightfully.
[ link to this | view in thread ]
velox (profile), 7 Mar 2011 @ 11:20am

Re: Re: Re: Re: Re:
"Wouldn't the complex only get seized if the they could prove that the complex owner was part of the problem"
That's correct.
There is drug activity that goes on in apartment complexes all the time, especially now that it has become known that you can mix up your own meth in a 2 liter soda bottle.
Where is the raft of apartment complex seizures?
Where are all the innocent apartment residents with their belongings sitting on the curb?
[ link to this | view in thread ]
RadialSkid (profile), 7 Mar 2011 @ 11:40am

Re: Re: Re:
Well if that isn't the pot calling the kettle a cooking utensil...
[ link to this | view in thread ]
Chosen Reject (profile), 7 Mar 2011 @ 12:27pm

Re: Re: Re: Re: Re: Re: Sovereign immunity precludes such a claim
Except that the owner didn't do anything wrong. Supposedly someone else did wrong. So you're fine with seizing an entire apartment complex because supposedly someone leasing one of the apartments did something wrong? How big of a net are you willing to cast? Should we condemn entire cities because someone might have violated the law there?
[ link to this | view in thread ]
Hephaestus (profile), 7 Mar 2011 @ 12:33pm

Re: Re: Re: Re: Re: Re: Re: Sovereign immunity precludes such a claim
"How big of a net are you willing to cast? "

Lets just seize the entire city, for the wrong doing of a single person, and be done with it.
[ link to this | view in thread ]
velox (profile), 7 Mar 2011 @ 12:41pm

Re: Re: Re: Re: Re: Re: Re: Sovereign immunity precludes such a claim
Yes... and Anne Boleyn's head was rightfully separated from her shoulders because it was done in accordance with the law at that time... (plus she hadn't delivered on that promise to give Henry his male heir so she really, really deserved it).
[ link to this | view in thread ]
The eejit (profile), 7 Mar 2011 @ 12:42pm

Re: Re: Re: Re: Re: Re: Sovereign immunity precludes such a claim
So Bad Faith is being a Muslim employee of the US government, clearly. [/sarc]
[ link to this | view in thread ]
The eejit (profile), 7 Mar 2011 @ 12:45pm

Re: Porn Sites
And by conflating that small subsection of society with customer of ONE company, you've called them all paedophiles. Well played, ICE.

Now, if only someone's killed by a vigilante because of this, we might have a case of aiding and abetting by ICE. And wouldn't that be a doozy.
[ link to this | view in thread ]
IronM@sk, 7 Mar 2011 @ 12:46pm

Re: Sovereign immunity precludes such a claim
"As far as I know..."

Seriously? As far as you know? Your own mastery of in depth research techniques is astounding.
[ link to this | view in thread ]
velox (profile), 7 Mar 2011 @ 12:55pm

Re: Re: Re: Re: Re: Re: Re: Re: Sovereign immunity precludes such a claim
Genesis 18
"26 So the Lord said, �If I find in Sodom fifty righteous within the city, then I will spare all the place for their sakes.� ....
...
...And He said, �I will not destroy it for the sake of ten.� 33 So the Lord went His way as soon as He had finished speaking with Abraham"
Well, there's the rule from God himself. If there are only 10 innocent people in a city, you have to spare it
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 12:59pm

Re: Re: Re: Re: Re: Re: Re: Re: Sovereign immunity precludes such a claim
Sadly, it is true. It is the same way that someone can be sent to death row and executed for crimes, yet be later proved to be not guilty. The action at the time was "rightful", even if it was not right in the long run.

There is such a huge difference, you would think an educated tech blogger would understand the difference.
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 12:59pm

Re: Re: Re: Re: Re: Re: Re: Re:
Maybe? I'm not that familiar with exactly how Section 230 works. I'd have to read some case law to get a feel for it. I just know that the statute has exceptions that include criminal law and child pornography.
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 1:02pm

Re: Re: Re: Re: Re: Re:
Sorry, Mike, you lose on this one. Section 230 is not in force in cases of obscenity or child porn. While it would protect moooo.com in general as a concept, it does not protect them in the all cases.

Sorry, would you care to try again?
[ link to this | view in thread ]
velox (profile), 7 Mar 2011 @ 1:30pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Sovereign immunity precludes such a claim
""Sadly, it is true. It is the same way that someone can be sent to death row and executed for crimes, yet be later proved to be not guilty. The action at the time was "rightful", even if it was not right in the long run.
There is such a huge difference...
You realize of course that your cohort today, Mr. Green Snowflake, has argued here on other days essentially that the law itself is the definition of right -- as if lawful always equals morally good.
[ link to this | view in thread ]
Ryan Diederich, 7 Mar 2011 @ 1:38pm

People are dumb...
Just about every comment on here defending the actions of ICE (and yes, I read all of them) supports one point or another, but skips the implications.

If Mooo.com is liable for its users, then register.com is liable for their users, then the US govt is liable because their nameservers allow me to get there.

Do you fools see how that works? Thats called discretionary, and it isnt right.

If it wouldnt make sense in real life (the apartment analogy) then it doesnt make sense on the internet.

Heres a good example...
I can go on facebook right now and type a paragraph of obscene, nasty, racist, whatever babble. Post it right to my page, send it to everyone.

It takes facebook 2 hours to find my post and delete it. Many people saw it and are offended. But who is responsible?

Can it really be facebook? I mean, is it really feasible to watch every single page at every single moment of the day? No.

Just like the police cant watch every single house, therefore they arent liable for crimes.

Get the fricking picture, and stop bending over for the man. I know the government gives YOU everything, and you are incapable of making YOUR OWN living, but Jesus Christ.

Excuse me, Judge? How can we, the managers of Mooo.com, possibly watch every one of our 84,000 subdomains?
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 2:09pm

Re: Re: Re: Re:
By that logic they could 'justifiably' shut down Google or as much of the internet as they are able. If it effects one instance of illegal content then you seem to suppose the collateral damage to be meaningless.

Able doesn't mean doing. Google doesn't allow third level domains on their sites controlled by users. Google doesn't publish the content. They link to it (which is a different can of worms).

Ability isn't the issue, actual acts are.

You're still refusing to acknowledge the simple technical fact that a sub domain is still a domain.

No, third levels are not domains, they are not subject to the same registration requirements, they are not centrally tracked, they are but a DNS entry. If they were required to be registered (whois) and tracked, you might have something. But the difference is that a third level domain isn't any different in reality from a folder site or an old style user site (you know ~Username).

Is there a legal basis for the liability stopping with moooo.com rather than the registrar or VeriSign? Again, why stop at moooo.com rather than .com?

moooo.com is the "smallest set" that could be seized in this manner. Seizing the entire .com registry would knock out millions of sites, and would be the proverbial "burning down the house to get a flea". In the case of a single domain, the focus is as narrow as the technical limitations of the internet provide for. We don't register third level domains, they are controlled internally. Therefore, there is no simple way to "pull a third level", without the help of the domain holder.

Technically, it's a whole different world.
[ link to this | view in thread ]
Ben (profile), 7 Mar 2011 @ 2:09pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Sovereign immunity precludes such a claim
"The action at the time was "rightful", even if it was not right in the long run."

So it was right to the best of their knowledge, based on available evidence which was later found to be wrong.

So it was wrong at the time, they just didn't know it. They may have followed the law, but the action was wrong because of an incomplete picture.
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 2:16pm

Re: People are dumb...
If Mooo.com is liable for its users, then register.com is liable for their users, then the US govt is liable because their nameservers allow me to get there.

It is a good logical concept, but it only works if you ignore the differences between a domain registration and third level domains. From a legal standpoint, third level domains don't appear to have much standing. A DMCA notice, example, would be sent to moooo.com and not to the individual using the third level domain, because legally, the third level is a fiction. If moooo.com failed to take action on the DMCA notice, they would be liable.

t takes facebook 2 hours to find my post and delete it. Many people saw it and are offended. But who is responsible?

The question is moot, because Facebook is working to resolve the issue and take down the offensive comments. If they chose to ignore warnings (or even legal notices) they could in fact become liable. This is most clearly true for things under DMCA, as that has a clear liablity attachment mechanism in it.

Most sites operate in good faith, which is something that keeps them from liablity. Otherwise, it's still up for debate, as smart legal minds continue to find interesting ways around the section 230 protections. When they fail, it is more fodder for potential legislation change to rebalance a system that currently favors the anonymous posters of the world (including me).
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 2:20pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Sovereign immunity precludes such a claim
So it was wrong at the time, they just didn't know it.

The issue of third level domains isn't something that comes up every day. Legally, it is a bit of a black hole, because there is no way to track whoever is using it, there is no registry, no legal construct. There is but a DNS entry. The knowledge they would have is that "on domain moooo.com there is X Y Z which is illegal". I think only when they took action did they get informed by the domain owners as to the nature of their arrangements with clients. At that point, they agreed to take down X Y and Z and the domain was reactivated shortly thereafter. It's not really hard to understand.

What they did was right, just perhaps not the best outcome and certainly not the intended outcome.
[ link to this | view in thread ]
Anonymous Coward, 7 Mar 2011 @ 2:22pm

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Sovereign immunity precludes such a claim
correction:

What they did was rightful, just perhaps not the best outcome and certainly not the intended outcome
[ link to this | view in thread ]
Not an Electronic Rodent (profile), 7 Mar 2011 @ 2:51pm

Re: Re:
weigh the same as a duck.
+5 Monty Python witch hunt reference.
[ link to this | view in thread ]
Modplan (profile), 7 Mar 2011 @ 5:03pm

Re: Re: Re: Re: Re:
http://www.youtube.com/watch?v=2hMkSNiBPvE

http://computer.howstuffworks.com/dns.htm

http://en .wikipedia.org/wiki/Domain_Name_System

Have fun.
[ link to this | view in thread ]
Modplan (profile), 7 Mar 2011 @ 5:12pm

Re: Re: Re: Re: Re:
Therefore, there is no simple way to "pull a third level", without the help of the domain holder.

Technically, it's a whole different world.

You read it here first folks - asking someone to take down particular sites from their service is ENTIRELY DIFFERENT when asking another person to take down particular sites. Why? Because we don't have WHOIS information.

I'll be glad to wake up tomorrow to find wordpress.com and blogspot.com gone and be gone legally having been done at the registrar level because 20 blogs had child porn. Obviously there was nothing that could be done - all the domains that Google and Wordpress have control over did not, in fact, exist, and there was no technical nor legal means to contact them to have the sites removed.
[ link to this | view in thread ]
athe, 7 Mar 2011 @ 5:20pm

Re: Re: Re: Re: Re:
From wikipedia (http://en.wikipedia.org/wiki/Domain_Name_System):

"The hierarchy of domains descends from right to left; each label to the left specifies a subdivision, or subdomain of the domain to the right. For example: the label example specifies a subdomain of the com domain, and www is a sub domain of example.com. This tree of subdivisions may have up to 127 levels"

Might want to read a little bit more about what is and what is not a "domain".
[ link to this | view in thread ]
athe, 7 Mar 2011 @ 5:24pm

Re: Re: Re: Re: Re:
One more thing:

"Therefore, there is no simple way to "pull a third level", without the help of the domain holder."

Why should it be simple?
[ link to this | view in thread ]
G Thompson (profile), 7 Mar 2011 @ 6:22pm

Re: Sovereign immunity precludes such a claim
You are assuming using that defense against a claim of defamation (which only works against civil and not criminal defamation) that all of the plaintiffs in a defamation claim against the USG are United States Citizens.

If any of the 84,000+ websites affected are outside of the USA and say for example are in common law countries like Canada, New Zealand, England (though thats another problem area under your new Statutes by Congress), and Australia. The USG has a MAJOR problem on its hand if damage has occurred by the actions of its agencies in this instance.

In fact I would go so far and suggest forthrightly that any organisation or individual that feels that they have in some way been maligned and had there reputation damaged by the wrongful or even misconstrued and negligent acts of ICE, and by extension the USG to contact their nearest legal representative that deals with negligence and defamation cases to talk about options. Who knows a class action might come of it.

Oh and "Sovereign Immunity" has no bearing on these sorts of cases when the Sovereign Agency of a foreign power does these things, and courts have the power to hear these cases in other jurisdictions and enact on restitution payments. You can ask Dow Jones all about it.
[ link to this | view in thread ]
Gwiz (profile), 7 Mar 2011 @ 6:27pm

A DMCA notice, example, would be sent to moooo.com and not to the individual using the third level domain, because legally, the third level is a fiction. If moooo.com failed to take action on the DMCA notice, they would be liable.

My question is this: Why wouldn't ICE ask mooo.com to hand over the offending subdomain name in the first place, instead opting to jump right in over their heads taking down 84,000 sites without any sort of prior notice? If mooo.com failed to respond, they would be liable at that point. If the purpose of the domain name seizures is to remove the tool of an alleged criminal and a quite a few of the seized domains have popped right back up again within days under new names, how would any sort of notification prior to the seizures affect anything?
[ link to this | view in thread ]
Gwiz (profile), 7 Mar 2011 @ 6:29pm

Re:
Supposed to be a response to Anonymous Coward, Mar 7th, 2011 @ 2:16pm
[ link to this | view in thread ]
Anonymous Coward, 8 Mar 2011 @ 12:36am

Re: Re: People are dumb...
It is a good logical concept, but it only works if you ignore the differences between a domain registration and third level domains. From a legal standpoint, third level domains don't appear to have much standing.

Please give us some case examples where judges have ruled third level domain owners don't have standing? I find that hard to believe at all. In some cases they might waive rights against suing the service provider when they agree to the Terms Of Service, but there's never any waiver of rights to sue third parties who deface their website like ICE just did.

A DMCA notice, example, would be sent to moooo.com and not to the individual using the third level domain, because legally, the third level is a fiction.

DMCA notices are sent to the Online Service Provider's designated agent. They do not have to be tied to any specific domain name, however some sites put down their domain name as the legal name on the designated agent form. If you actually looked at the published list of designated agents you would find third level domains registered in some cases. Here are three of them but there's several more:

sportsillustrated.cnn.com
sports.aol.com
del.icio.us, Inc.

If moooo.com failed to take action on the DMCA notice, they would be liable.

This is simply not true. Read section 512(l). The DMCA is a limitation on liability and if you choose to ignore DMCA notices you are not automatically liable by any means. There also isn't even a statute dictating the time limit an OSP has to respond to a DMCA request.

The question is moot, because Facebook is working to resolve the issue and take down the offensive comments. If they chose to ignore warnings (or even legal notices) they could in fact become liable. This is most clearly true for things under DMCA, as that has a clear liablity attachment mechanism in it. Most sites operate in good faith, which is something that keeps them from liablity.

Nobody has seen the warrant for mooo.com, but read the warrants from other domain name seizures by ICE. Read the newspaper articles. Those sites weren't sent any notices for the pages which linked to allegedly infringing content. And most likely nothing was done to inform mooo.com's owner that there was a child porn operation using one of it's subdomains. If mooo.com was complicit in child pornography distribution even by neglect, ICE wouldn't have unseized the site so quickly and admitted they made a mistake so discreetly (via email to a few news sites). If judges got wind of what happened they would think twice about signing warrants for domain name seizures. If Congress got wind, they might shelve COICA forever, or better yet open an investigation on ICE's actions.

P.S.
I'm starting to think you're a second level domain reseller that doesn't like people registering for third level domains.
[ link to this | view in thread ]
vivaelamor (profile), 8 Mar 2011 @ 8:00am

Re: Re: Re: Re: Re:
"Able doesn't mean doing. Google doesn't allow third level domains on their sites controlled by users."

I referenced Google for the fact that they host third party content, which is separate from the issue of domains. Though I believe they also host third party domains as part of their Google Apps service.

"Google doesn't publish the content. They link to it (which is a different can of worms)."

I was referring to the fact that Google owns YouTube and various other hosting services.

"No, third levels are not domains, they are not subject to the same registration requirements"

Registration requirements don't determine what is or isn't a domain. It's a valid distinction, but it's nothing to do with what is or isn't a domain. I'm not saying this just because you're wrong, but because you can't possibly make your point properly if everyone has to guess what you're referring to.

In light of that, why are the registration requirements an issue here? Aside from the semantics.

"the difference is that a third level domain isn't any different in reality from a folder site or an old style user site (you know ~Username). "

They are very different. Try setting up email for a 'folder site'.

"moooo.com is the "smallest set" that could be seized in this manner. Seizing the entire .com registry would knock out millions of sites, and would be the proverbial "burning down the house to get a flea". In the case of a single domain, the focus is as narrow as the technical limitations of the internet provide for. We don't register third level domains, they are controlled internally. Therefore, there is no simple way to "pull a third level", without the help of the domain holder."

The last line of that paragraph pretty much sums the issue up. If they had asked for the help of the domain holder then there are absolutely no technical limitations to stop a third level domain being seized. Can you provide a reason why they could or should not have contacted the owners of moooo.com to seize the third level domain?

"Technically, it's a whole different world."

I'm unsure what you mean here. Are you suggesting that we don't understand how the domain name system works? Because you'll have to do better to convince me that you know more on the subject.
[ link to this | view in thread ]
Karl (profile), 13 Mar 2011 @ 8:50pm

Re: Re: Re: Sovereign immunity precludes such a claim
http://www.law.cornell.edu/uscode/28/usc_sup_01_28_10_VI_20_171.html

Emphasis mine.

There are really two parts to that statute. The first one is under what circumstances the U.S. becomes the defendant. The second enumerates what tort offenses the government is not liable for, if one of its employees commits the offense.

Most of your quote refers to the first part - the question of whether the defendant is the U.S. government, or the individual agent(s). That's not really at issue here.

It seems clear to me that the government itself cannot be sued for libel:

The provisions of this chapter and section 1346 (b) of this title shall not apply to - [...]
Any claim arising out of assault, battery, false imprisonment, false arrest, malicious prosecution, abuse of process, libel, slander, misrepresentation, deceit, or interference with contract rights: Provided, That, with regard to acts or omissions of investigative or law enforcement officers of the United States Government, the provisions of this chapter and section 1346 (b) of this title shall apply to any claim arising, on or after the date of the enactment of this proviso, out of assault, battery, false imprisonment, false arrest, abuse of process, or malicious prosecution.

So, a libel suit is most likely dead in the water.

Note that I'm not defending the seizure. Not only was it a clear case of prior restraint in this specific instance, such seizures are not "rightful" in any general sense either. This is a clear-cut example of why the government shouldn't be seizing domain names at all.
[ link to this | view in thread ]
Karl (profile), 13 Mar 2011 @ 10:28pm

Re: Re: Re: People are dumb...
The DMCA is a limitation on liability and if you choose to ignore DMCA notices you are not automatically liable by any means.

This is not actually true. Failing to respond to DMCA takedown notices means you didn't follow the rules, and the limitation on liability is contingent upon following those rules.

Of course, if they do, then ex parte seizures and injunctions are specifically prohibited under 512(j)(3). There are further limitations under 512(j)(2), which must be considered before any seizure or injunction. 512(j)(2)(c) requires the court to consider "whether implementation of such an injunction [...] would not interfere with access to noninfringing material at other online locations."

ICE was clearly not following the law.
[ link to this | view in thread ]
Karl (profile), 13 Mar 2011 @ 11:13pm

Re: Re: Re: Re: People are dumb...
Of course, if they do, then ex parte seizures and injunctions are specifically prohibited under 512(j)(3).

Oops! That's wrong. That's only applicable if they're accused of copyright infringement.

Other "safe harbors" laws are in Section 230. Unfortunately:

Nothing in this section shall be construed to impair the enforcement of section 223 or 231 of this title, chapter 71 (relating to obscenity) or 110 (relating to sexual exploitation of children) of title 18, or any other Federal criminal statute.

On the other hand, 18 USC 110(2258A)(f) states:

Protection of Privacy.� Nothing in this section shall be construed to require an electronic communication service provider or a remote computing service provider to�
(1) monitor any user, subscriber, or customer of that provider;
(2) monitor the content of any communication of any person described in paragraph (1); or
(3) affirmatively seek facts or circumstances described in sections (a) and (b).

Furthermore, every single criminal act referenced in 18 USC 110 is prefaced by the word "knowingly."

I'm guessing Congress thought this would be enough of a theoretical "safe harbor" for websites, to prevent prior restraint. Obviously, they were wrong.

And, of course, ICE isn't even supposed to handle child pornography, unless it's "imported" (and mooo.com is from California). That's under the aegis of the FBI. If it's on the internet, it's under the jurisdiction of their Cyber Crimes Division.

ICE shouldn't have even been involved. Leave it to the experts, that's what I say.
[ link to this | view in thread ]