Senator Wyden Warns That Domain Seizures And COICA Undermine Internet Freedom
from the sounds-about-right dept
Senator Wyden continues to be one of the few politicians actually concerned about the impact of the government's expansive view towards seizing domain names and stifling speech online. His latest is to point out that Homeland Security's strategy with these domain seizures appears to be completely in conflict with the State Department's position on internet freedom, as laid out by Hillary Clinton.Speaking at an event hosted by the Computer and Communications Industry Association (CCIA), Wyden said he sees a tension in the government between the aggressive ICE crackdown and the work of Secretary of State Hillary Clinton to promote Internet freedom. The State Department funds technology aimed at derailing Web censorship by foreign regimes.He's absolutely correct, of course, but I'm not sure this line of argument will really work. That's because supporters of domain seizures in the US seem to have a complete mental block on this issue. They claim that such seizures are okay in the US because it's about "stopping people from breaking the law." What they don't realize is that's the identical reason given for seizing domains and websites elsewhere: it's just that the laws are different. In China, the argument for blocking speech has always been to stop people from breaking laws. So I wouldn't be surprised to see the State Department and Hillary Clinton claim they're fine with domain seizures and try to distinguish them from censorship in other countries through a massive level of cognitive dissonance.
Wyden, who commended Clinton for her efforts and said he has spoken with her on the initiative, said domain-name seizures in the U.S. could be a setback to Clinton's Internet freedom work.
"Hopefully, her views will prevail, and not the views of ICE," he said.
Wyden said foreign governments might look at the domain seizures and say, "We've seen it done in the U.S. We have the green light to do it here in our country."
I think this is a real problem, honestly. The supporters of domain seizures and laws like COICA simply refuse to recognize how much harm this does to the US's arguments abroad concerning censorship. They have a block, because they think this kind of censorship is "good" so it's either not really censorship, or it's okay. It's this blind spot that will really harm the US's ability to have any real moral leadership on censorship issues in other countries.
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Filed Under: coica, domain seizures, internet freedom, ron wyden
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The problem there is selfishness. The people in question lack the empathy and self-awareness to understand that laws should be designed to benefit everyone, rather than for their own express benefit. The result is the aforementioned cognitive dissonance: "This censorship is good because I benefit from it, but that censorship is bad because it's censorship".
That kind of selfish behavior is like taking out a loan: good short-term profit, bad long-term profit. Unfortunately, too many people stop reading at "good short-term profit" and just run with it.
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harm the US's ability to have any real moral leadership
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While Hillery was raising cain with China over human rights, China was justifiably able to mock back about the US doing the very same things. If your house isn't in order, pray you don't live in a glass house.
The on-going issue of the left not recognizing what the right is doing, is busting out at the seams all over. Both this and another are now on the front page here at TD back to back.
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Re: harm the US's ability to have any real moral leadership
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Re: harm the US's ability to have any real moral leadership
Oddly enough, it's pretty much completely dead at about the same time Superman is renouncing his American citizenship...
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Re: Re: harm the US's ability to have any real moral leadership
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Domain Seizures
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So what?
Are you suggesting that since China regulates the internet in nefarious ways, that the US shouldn't regulate the internet at all?
Good luck with that.
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Response to: Anonymous Coward on May 4th, 2011 @ 5:06pm
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Re: Response to: Anonymous Coward on May 4th, 2011 @ 5:06pm
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Re: Re: Response to: Anonymous Coward on May 4th, 2011 @ 5:06pm
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Re: Re: Response to: Anonymous Coward on May 4th, 2011 @ 5:06pm
Let me see if I can accurately restate what you are implying: 'Stopping copyright infringement isn't nefarious, so any means of stopping copyright infringement is OK.'
Instead of stopping with authoritarian surveillance of citizens, and unconstitutional search and seizure, why don't you just move right ahead with more vigorous methods -- something like... a day in jail for every suspected infringing file on your computer.
One could go on from here with any number of ridiculous impositions upon the populace and draconian punishments. Apparently by your simplistic argument, they would all be fine, so long as one is pursuing the unlimited goal of halting infringement.
Probably the most nefarious thing about COICA, as it has been proposed, is that the government creates incentives and liability protections to encourage corporate entities to search the content of communication between other private parties -- without probable cause that a crime has been committed.
How could it be permissible for the government to allow, much less encourage a private entity to do what the government itself could not constitutionally do.
Note that this is all supposedly in support of laws that are, as I know you are well aware, per Article I, Section 8, Clause 8; to promote the arts and sciences. There is absolutely nothing written there about those concepts that have become the raison d'etre for rivers of lawyers-- "property" and "theft"
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Re: Re: Response to: Anonymous Coward on May 4th, 2011 @ 5:06pm
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Re: Re: Response to: Anonymous Coward on May 4th, 2011 @ 5:06pm
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Re: Re: Re: Response to: Anonymous Coward on May 4th, 2011 @ 5:06pm
Sure to make your "sitting on the shitter reading worthless commentary" experience the best since an hour ago.
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Re: Re: Re: Response to: Anonymous Coward on May 4th, 2011 @ 5:06pm
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Re: Re: Re: Re: Response to: Anonymous Coward on May 4th, 2011 @ 5:06pm
If you died tomorrow, no one would notice.
That goes for every member of this site. That's what you're all really angry about.
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New Approach for ICE
Sorry for the long comment. I tried to email you this but your email keeps bouncing. Please email me and I will gladly give you more materials.
ICE has apparently started on a new path to seize domains. They are apparently now bypassing the entire judicial process and using a combination of 19 USC 1595a, 18 USC 2320 and 18 USC 2323. These are truly interesting as they are all targeted at “merchandise” To object to the seizure requires posting a bond.
I have received several from clients of mine who are domain name registrars. Verisign is rolling over on these and taking the domains, demanding that the registrars cancel the registration.
There are apparently two (2) flavors of the notice. First, they “post” a Notice of Seizure and Intent to Forfeit. Then after a 20 day period they can declare the property forfeited. The 1st form looks somewhat like the following (I have redacted the domains and case numbers for confidentiality purposes):
“Port Case Number
Properties Being Forfeited
201130010000XXXX // XXXX // XXXX // XXXX
Notice is hereby given of the intent to forfeit the following merchandise under 19 USC 1607. Parties wishing to contest the forfeiture of the item(s) or any part thereof must appear and file with the Fines, Penalties and Forfeitures Officer, U.S. Customs and Border Protection, Seattle, Washington, a claim to such merchandise under 19 USC 1608 and a bond in the penal sum of $5,000.00 or 10 percent of the value of the claimed property, whichever is lower, but not less than $250.00 within twenty (20) calendar days from the date first posted or published. This will stop summary forfeiture proceedings and the case will be sent to the United States Attorney for judicial civil forfeiture action. If posted, the bond must he on Customs Form 301. In order to file a bond, you may wish to consult a Customhouse Broker to assist you. If you are indigent you may not have to post the bond. To get a waiver of the bond, you must fully disclose your finances in a signed statement, i.e. submission of a copy of your latest income tax return, welfare document, etc. In you do not wish to make such a claim in Federal Court, no action is required on your part and the articles will be declared forfeited by default at the end of the twenty (20) day period.
Date Forfeiture Initiated: February 25, 2011
Place and Date of Seizure: November 24, 2010, Dulles, Virginia
Statutory Basis of Seizure: 19 USC 1595a, 18 USC 2320
Description of Property: Domain names XXXtseries.com", XXXrder.com",
XXXXmberland.com", XXXXend.com".
FP&F Case: 201 130010000XXXX // 201 130010000XXXX // 201 130010000XXXX // 201130010000XXXX
DECLARATION OF ADMINISTRATIVE FORFEITURE
In accordance with the provisions of Title 19, United States Code, Sections 1608 and 1610, and Title 19, Code of Federal Regulations, Section 162.45, the following described property is hereby declared forfeited for violations of 19 USC 1595a, 18 USC 2320.
Domain names “XXXtseries.com", XXXrder.com", XXXXmberland.com", XXXXend.com".
U.S. Customs and Border Protection, Seattle, Washington, has posted a notice of intent to forfeit the above merchandise for three consecutive weeks in the Seattle Customhouse, Seattle, Washington.
John Helman
Senior Fines, Penalties and Forfeitures
Specialist, Seattle, Washington
Date: 3/28/11”
The second document is a “Declaration of Administrative Forfeiture” which reads as follows:
DECLARATION OF ADMINISTRATIVE FORFEITURE
In accordance with the provisions of Title 19, United States Code, Sections 160711609 and Title 19, Code of Federal Regulations, Part 162.45, the following described property is hereby declared forfeited for violation of:
CASE NUMBER: 2011-1801-000XXX
LAWS USED TO FORFEIT THE PROPERTY:19USC1595a, 18USC2323,18USC981
DESCRIPTION OF PROPERTY FORFEITED:
Domain name - www.XXXXollection.com
Notice of Seizure and Intent to Forfeit was posted in the port of Tampa as required by law on the following date: 1/28/11
Mary Ann Cranford
Fines, Penalties and Forfeitures Officer
I particularly like the hat-tip to Due Process in the 2nd notice.
“Notice of Seizure and Intent to Forfeit was posted in the port of Tampa as required by law on the following date: 1/28/11.”
Now THAT is due process. Exactly how many domain registrants visit ports of entry to see if their domains have been seized? WHOIS is publicly available. No notice was sent to the registrant. This is absurd.
Moreover, the statutes upon which they are relying are not exactly supportive.
19 USC 1595a concerns forfeiture of “every vessel, vehicle, animal, aircraft, or other thing used in, to aid in, or to facilitate, by obtaining information or in any other way, the importation, bringing in, unloading, landing, removal, concealing, harboring, or subsequent transportation of any article which is being or has been introduced, or attempted to be introduced, into the United States contrary to law, whether upon such vessel, vehicle, animal, aircraft, or other thing or otherwise, may be seized and forfeited together with its tackle, apparel, furniture, harness, or equipment. “ (1955a(a)). The remainder of the section deals with the forfeiture of “merchandise”
18 USC 2320 deals with fines and forfeiture. Most notably, (a) requires specific intent in connection with trafficking counterfeit goods or services. The forfeiture section (b) requires the process set out in 18 USC 2323.
Best of all, 18USC2320(c) states as follows:
“(c) All defenses, affirmative defenses and limitations on remedies that would be applicable in an action under the Lanham Act shall be applicable in a prosecution under this Section. In a prosecution under this section, the defendant shall have the burden of proof, by a preponderance of the evidence, of any such affirmative defense.”
WHOA, …..
Section 2323 appears to pertain only to “articles” and “property”. Further, it seems to require court involvement as it is referenced in numerous places including “at the conclusion of the forfeiture proceedings, unless otherwise requested by an agency of the United States, the court shall order that any property forfeited under paragraph (1) be destroyed, or otherwise disposed of according to law.
It would be interesting to see how this plays out. First, whether or not domain names are “ articles” or “property” depends on what State you are in. The issue of whether something is property is a STATE LAW matter. Delaware (home to the .com registry, has repeatedly ruled they are NOT property and that registration is merely a contract right. This was the result of years of work by NSI (then the registry and registrar) when it faced litigation following numerous domain name highjackings brought about by its horrible security. In California it is thought they are property following the 9th Cir. decision in Sex.com. Given that the registry is in Delaware, how can 18 USC 2323 apply?
So, when faced with criticism, and perhaps an unwilling court following the 1st debacle, what does ICE do? They work with the IP community and dig into their bag of tricks and come up with a way to completely avoid the judicial process. That the law was never intended to cover domain names is obvious by the very nature of their “notice” which is apparently a “nail the paper on the door to the Customshouse”. Customshouses is where importers go (to pay duty). I am not sure what happens in Seattle but I doubt you would find many domain registrants (particularly those not even residing in the US) who even know where the Customshouse is.
Of course, all of this only “seizes” the domain. All of the content continues to thrive elsewhere.
And, of course, ICE will argue that the law is broad enough to apply given the wording of Section 1595a(a). However, given the nature of domain names and how they are “used”, the same broad language could result in the forfeiture of the likes of Microsoft (their software is used to build websites and host them), Intel (their microprocessors are in every computer it seems), VeriSign (they in fact control the zone files – without which the domains could not resolve), ICANN (they run the entire mess and if it weren’t for them we would not have to deal with this problem). Ohh, and lets not forget the telcos who bring us the ability to connect to the Internet in the first place.
BBBUUUUTTTT its piracy!!!!!!!!!!!!!!!!!!
Paul Keating
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Re: Re: Re: Re: Re: Response to: Anonymous Coward on May 4th, 2011 @ 5:06pm
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Re: Re: Re: Re: Response to: Anonymous Coward on May 4th, 2011 @ 5:06pm
I like how you address all the points of the post to which you respond. It is amazing how well each and every one was refuted with facts and evidence.
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Re: New Approach for ICE
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Re: Re: New Approach for ICE
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Re: Re: Re: Re: Re: Re: Response to: Anonymous Coward on May 4th, 2011 @ 5:06pm
According to the latest Quantcast stats the readers of this site are:
58% are over the age of 35
53% make 60k or more (indicating professionals in their fields)
49% are college educated.
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Re:
"But, but, but..."
/spin
"CENSORSHIP!"
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Wyden
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Re: Wyden
--- Yes, yes he is... Oregon FTW!
2) He DOES need to consider that the enablers of piracy ... should be targeted.
--- Yes Pirates should be stopped. (http://en.wikipedia.org/wiki/Piracy) The question however is what "a war-like act committed by non-state actors against parties of a different nationality, or against vessels of their own nationality at sea, and especially acts of robbery and/or criminal violence at sea" has to do with domain names.
3) If you cut of the financial incentive ... you will put a big dent in [copyright infringement]. {FTFY}
--- WRONG, Wrong, and PROVEN wrong.
4) Of course if NIKE's products could be reproduced with a click of the mouse, he might think differently.
--- Why? What does Counterfeiting and Trademark have to do with copyright infringement?
*** The answer? NOTHING! Quit conflating all "intellectual property" (and yes I hate that term too) together.
5) Yes Google does have a data center complex in The Dalles.
--- So What? What about Berkeley County, SC · Council Bluffs, IA · Lenoir, NC · Mayes County, OK (http://www.google.com/corporate/datacenter/locations.html) I don't see their senators doing anything.
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Re: Re:
We will just print more money to buy the debt back ... the same way we are doing with QE2
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