ICE Declares 'Mission Accomplished' On Domain Seizures

from the a-success? dept

Fri, Jun 10th 2011 10:30am — Mike Masnick

It appears that assistant deputy director of ICE, Erik Barnett, is going around talking up the massive success of ICE's potentially illegal domain seizure regime. SD points us some coverage of Barnett speaking in Stockholm, where he bragged about just how successful the program has been, making a series of highly questionable claims:

"People told us that we will fail if we seize these domain names, and that we�ll look foolish," said Erik Barnett, assistant deputy director of the US government�s Immigration and Customs Enforcement (ICE) team, which began conducting Operation In Our Sites last year. "People said [that the infringers] would come back. But the reality is they didn�t � that was surprising."

I can't tell if Barnett is just totally and completely uninformed here... or lying. As plenty of people have noted, at least on the copyright side, the vast majority of the sites have reappeared, often within hours.

Barnett also makes this highly questionable claim:

"The notice says that you can challenge the seizure, but no one has yet," he added.

Yeah, that's because the US government has made it incredibly convoluted and difficult to actually challenge the seizure. While Barnett notes that the notice says you can, there is no process, and the Justice Department has done everything it can to avoid letting anyone challenge the seizure.

But the point of his speech seemed to be to suggest that other countries follow suit and begin censoring websites with no trial as well. Isn't that nice, when US officials promote censorship in other countries?

Separately, Barnett spoke to The Bureau of National Affairs (BNA) for an interview about the seizures. Unfortunately, it's totally locked up behind a paywall, but someone (anonymously) sent me a copy, and I'd like to highlight some of Barnett's more ridiculous statements there as well. He kicks it off by again thanking Congress for passing the ProIP Act, which snuck the seizure bit into law, with most people believing it meant seizing actual tools of infringement, not domain names. From there, he discusses how ICE decides what to seize:

The popularity of the website, because how popular a website is tells us how profitable. We look at a website's Alexa rankings, because the lower the Alexa ranking--meaning the more traffic a website receives--directly correlates to higher proceeds from sales, or to more revenue from advertisements.

Alexa?!? My goodness. Alexa is perhaps the least accurate website ranking system out there and is considered a total joke. Do a Google search on Alexa rankings suck, and you get nearly 34 million results. They're not even close to accurate. This does not build confidence in ICE's technological knowhow. Alexa is to website rankings what the original AOL was to the internet. It's training wheels, but not an accurate representation. Furthermore, higher popularity often does not mean greater revenue, but again, ICE is demonstrating its cluelessness about internet business models.

Whether the website is commercial in nature: We only go after websites that run advertisements, or sell subscriptions or merchandise. We are not looking at community forums or chat rooms. Rather, we are looking for websites that are making a substantial amount of money from these websites.

This is also totally bogus. Any site can run ads, but often those ads barely cover server fees. Does that really make it a "commercial" enterprise? And he's wrong when he says they're not looking at community forums or chat rooms, because at least some of the domains seized were for community forums. And as for "substantial amount of money," again that's difficult to fathom. In the various affidavits used to seize these sites, the info they received about ad revenue suggested miniscule amounts -- maybe a few hundred per month, which probably barely covered hosting, if at all. In the one actual lawsuit filed, the evidence suggested a grand total of $90,000 made in ad revenue over five years, or less than minimum wage. How is that "substantial amounts of money"?

Also interesting is that he explains how they're simply researching sites recommended by rights holders and choosing who to go after:

Once that referral is made, there will be some initial follow up by an ICE agent to see if the site falls into those general categories of what we are looking for. If it is a site that meets the criteria, what we will do is start an undercover criminal investigation, and ultimately the agent will look at the site and�working within the statutes, 18 U.S.C. Section 2319 and Section 2320�they will look at whether this is a site that is going to meet those factors.

The Justice Department then will also then have an opportunity to look at the site through the evidence that is presented either to an Assistant U.S. Attorney, or to a Justice Department trial attorney, and they will make a determination of whether or not the site meets their standards for prosecution. And then ultimately we will present that evidence to a federal magistrate judge.

He then suggests that they're seizing over 50% of the domains that have been submitted by rights holders! He claims that in the second round of seizures, for 77 URLs, they had received requests to look at 130, but only seized 77. This seems bizarre. He seems to take the default position that if a rightsholder complains about a site, it must be infringing, and he wishes they could seize more.

No wonder they seized so many sites in error. ICE seems to come at this from not just a technologically clueless position, but also one where they automatically assume that the rightsholder is right. Who knew ICE's mission was to prop up failing business models?

Towards the end of the interview, he's finally asked about the fact that so many of these sites popped right back up. And Barnett tries to turn this into a claim that it shows how successful ICE has been.

What may sound odd is that from a law enforcement perspective, that actually is also a metric of success. There was some general complacency on the part of the criminals who were engaging in trademark and copyright infringement without really any threat of enforcement. You now have individuals who have to spend more time and more money on work-arounds or diversions.

Once again, this either shows Barnett blowing smoke, or being technologically clueless. Most of these sites popped back up pretty quickly. Getting a new domain is pretty cheap and fast.

To be honest, I'm pretty disappointed that BNA -- an excellent publication -- failed to ask the serious questions about the constitutionality of the seizures, and the fact that they appear to violate basic due process and prior restraint issues found in the case law. I'm sure Barnett would have brushed off those questions, but you get the feeling sometimes that the folks at the top of ICE haven't even considered these things.

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: domain seizures, erik barnett, homeland security, ice

39 Comments

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

Reader Comments

Subscribe: RSS

View by: Time | Thread

Andres (profile), 10 Jun 2011 @ 10:55am

By Jove, it's true! It's impossible to download movies online. The ICE has really destroyed piracy as we know it!
[ link to this | view in thread ]
Ninja (profile), 10 Jun 2011 @ 11:01am

Let them think they succeeded in eradicating file sharing in their own delusional world, maybe they'll go play with their dolls and leave ppl in peace.

This article clearly shows they are a bunch of clueless idiots...
[ link to this | view in thread ]
Anonymous Coward, 10 Jun 2011 @ 11:01am

Laws are for he governed not the governers.
[ link to this | view in thread ]
Anonymous Coward, 10 Jun 2011 @ 11:01am

Laws are for the governed not the governers.
[ link to this | view in thread ]
Jimr (profile), 10 Jun 2011 @ 11:05am

But Barnett is a person of importance and the newspapers will blindly print what he says as if it where the holy Gospel.

With terrorism taking such a hard hit everyone can sleep better tonight.
[ link to this | view in thread ]
mike allen (profile), 10 Jun 2011 @ 11:14am

and in reality ICE about as effective as a sieve at holding water.only drives it all further underground.
[ link to this | view in thread ]
Josh in CharlotteNC (profile), 10 Jun 2011 @ 11:25am

Charges filed?
If it is a site that meets the criteria, what we will do is start an undercover criminal investigation, and ultimately the agent will look at the site and�working within the statutes, 18 U.S.C. Section 2319 and Section 2320�they will look at whether this is a site that is going to meet those factors.

So they start an undercover criminal investigation, decide that the site falls foul of a law, get a judge to sign off on "seizing" a domain name, but then never file criminal charges so the accused can answer and defend themselves?

And I'm sure we'll get some copyright supporter saying this is all just peachy.
[ link to this | view in thread ]
Anonymous Coward, 10 Jun 2011 @ 11:27am

Re:
and in reality ICE about as effective as a sieve at holding water.only drives it all further underground.

It isn't about stopping copyright infringement, it's about creating another enforcement industry, like they did with the "drug war" enforcement industry.
[ link to this | view in thread ]
Liz, 10 Jun 2011 @ 11:28am

I won't believe it until I see Erik Barnett standing on the deck of an aircraft carrier.
[ link to this | view in thread ]
Don Dilly, 10 Jun 2011 @ 11:34am

If anything they have actually helped promote some P2P sites.

The seizures were widely reported. there were certainly a few p2p and streaming sites I had not heard of until recommended by ICEso off to twitter i went to find their new domain.

Now thanks to Mafiaafire I dont even need do that.

Long term it is good for the sites as ICE is giving them more publicity than they could wish for

So again, thank you ICE
[ link to this | view in thread ]
aargh, 10 Jun 2011 @ 11:39am

Alexa Pirate Bay
Alexa ranks TPB in the top 100 of ALL sites, yet ICE can't sieze it. Haw-Haw. http://www.alexa.com/siteinfo/thepiratebay.org
[ link to this | view in thread ]
CommonSense (profile), 10 Jun 2011 @ 11:45am

Re: Re:
Wow... that's actually a scary thought, I hadn't really thought about that possibility.

Scarier still is that they may be doing this, as more and more people speak out about the failure of the "drug war" and wish to stop it... This country seems to have a real hard time learning lessons from the past.
[ link to this | view in thread ]
Revelati, 10 Jun 2011 @ 11:56am

"it's about creating another enforcement industry, like they did with the "drug war" enforcement industry."

And after wasting untold billions of dollars and ruining the lives of countless people they will lose this war too. Anyone with cognitive abilities grater than a chimpanzee can tell you that Prohibition WAS A FAILURE, the Drug War IS A FAILURE, and the future war on the free flow of information WILL BE A FAILURE.

This is a tragic waste of lives, money, and time all to increase the power of law enforcement institutions in the short term. Even Obama who campaigned so vehemently against the erosion of individual rights and freedoms could not resist embracing such things as the patriot act, and has IN EVERY SINGLE CASE pushed for more authority and less oversight of law enforcement.

Yet the people themselves say that "If you aren't a criminal then you have nothing to worry about!" Well its hard to not be a criminal when everything is against the law. Show me a person who has never once driven their car down the block without putting on their seat belt, gotten a parking ticket, or bent the law in one form or another in their lifetime, and there you will have a person with the moral authority to wield these powers that we have granted our government.
[ link to this | view in thread ]
Anonymous Coward, 10 Jun 2011 @ 12:04pm

Re:
But copyright infringement. Wild west over. Culture easy.
[ link to this | view in thread ]
PrometheeFeu (profile), 10 Jun 2011 @ 12:39pm

I'm wondering about the legality of creating a site that looks like it commits copyright infringement but actually does not. (Let's say by offering CC songs for download with garish "FREE TORRENTS" banners) Add ads, then get someone to tip off ICE. Then do it again, and again. Then, publish the long list of websites with which you hooked ICE into looking stupid. It could be called ICE fishing.
[ link to this | view in thread ]
Atkray (profile), 10 Jun 2011 @ 12:55pm

Re:
Patent that and profit.
[ link to this | view in thread ]
Josh in CharlotteNC (profile), 10 Jun 2011 @ 12:58pm

Re:
This idea has promise.

It is in effect no different than what police agencies do as sting operations, and undercover investigative journalists do to show wrongdoing by businesses.

Be very careful if you have to provide any statements under penalties of perjury, or if you're providing any false information directly to a law enforcement official. This is not real legal advice though, IANAL.
[ link to this | view in thread ]
Anonymous Coward, 10 Jun 2011 @ 1:05pm

Re:
Then, publish the long list of websites with which you hooked ICE into looking stupid.

ICE has already done this to themselves. Doesn't phase them a bit.
[ link to this | view in thread ]
David Good (profile), 10 Jun 2011 @ 1:12pm

From reading Barnett's bio on the ICE web page, he strikes me as a lawyer/lobbyist who is far more interested in advancing his own career than anything else. It seems from his actions and words that ICE came up with a flawed plan, exectuted it badly, and Barnett has the choice of either falling on the sword or lying through his teeth.

I'm guessing like a true lobbyist, he lied.

I am deeply disappointed in the direction the current administration has taken on technology and IP issues. Barnett seems to typify the worst of those values. He's nothing but a pawn for the MPAA and RIAA.
[ link to this | view in thread ]
BeeAitch (profile), 10 Jun 2011 @ 2:46pm

Re:
"And after wasting untold billions of dollars and ruining the lives of countless people they will lose this war too. Anyone with cognitive abilities grater than a chimpanzee can tell you that Prohibition WAS A FAILURE, the Drug War IS A FAILURE, and the future war on the free flow of information WILL BE A FAILURE."

(devil's advocate)
By whose definition (from whose viewpoint) are these failures though? I'm sure plenty of people in the enforcement industries created made good money. By their definition, I'm sure these endeavors were successful. (/advocate)

Totally agree with your stance, btw. ;)
[ link to this | view in thread ]
Anonymous Coward, 10 Jun 2011 @ 3:17pm

Re: Alexa Pirate Bay
Wait until the Protect IP Act passes. Haw-Haw.
[ link to this | view in thread ]
Shane C (profile), 10 Jun 2011 @ 3:41pm

Lawsuit
Something I don't understand, is why someone hasn't brought a lawsuit against anybody who's name is very obviously associated with the seizures. I understand that the parties that are currently associated with the actions, might not be the government entity initiating the action. However, if you sue one entity I would think that their "defense" would be "it's not us, we're just doing this on behalf of so-and-so." THEN you they could go after the "real" department initiating things.

The arguments I've heard so far about them not being able to bring legal action because they "don't know who they're suing," doesn't seem to hold water. Someone's name is on these documents, pick a name and start filing action.

Obviously I'm not a lawyer (and I honestly would love someone with a legal background to explain this to me), but from how I understand the law, the system was setup to prohibit prosecutors from bringing action you couldn't fight. Several of these domains affected have large amounts of $$ and lawyers ready to do it. Why are they just sitting around hoping for the justice department to "allow them" to fight the seizures?
[ link to this | view in thread ]
Anonymous Coward, 10 Jun 2011 @ 4:32pm

Re: Re: Alexa Pirate Bay
They're not in the US, haw-haw. Who cares about the US anymore anyway? We all know Obama is Hitler, and the police state is well implemented. United-Statesians need to wake up. Revolt. Do SOMETHING! You're letting them ruing the ideology of the founding father, and not just because of the recording industry... it's scary how passive you all are. You need an Egypt revolution at home. Your country couldn't be in deeper shit yet no one cares.... WAKE UP!
[ link to this | view in thread ]
Anonymous Coward, 10 Jun 2011 @ 5:14pm

Re: Lawsuit
I work for one of the sites whose domain name was seized by ICE. I don't want to risk being fired so I'm not giving specific details here. Operation In Our Sites is a corrupt operation. I believe that the domain name would be un-seized if the government was taken to court. They can't file any charges that would hold water. We know who to sue but the easiest thing to do is to just see if the department will un-seize it first. I've even been told by the site's owner that his attorney has advised him not to go over the DOJ's head and see a judge because they might file charges in retaliation. It's just a case of not wanting them to take it there because it would cost more to defend a "real" case. So he's going along with their stalling game. The sad part is that the DOJ hasn't responded to a single phone call, letter, or e-mail since the seizure was officially contested. I'm increasingly concerned that they have no intention of un-seizing the domain name voluntarily. We've even discovered evidence that the agent lied on the affidavit. That part leaves an extremely bad taste in my mouth but there's nothing I can personally do about it. I hope that answers your question. I never thought something like this would be happening in America but it is.
[ link to this | view in thread ]
Prashanth (profile), 10 Jun 2011 @ 7:17pm

Mission's accomplished, right? So we don't have to worry about this anymore then?
[ link to this | view in thread ]
William, 10 Jun 2011 @ 8:10pm

Re:
Baaad idea, they'd arrest you for wasting their time. :)
[ link to this | view in thread ]
bmcraec (profile), 10 Jun 2011 @ 9:00pm

Re: Enforcement Industry
Well said. It's absolutely, horribly correct. All Empires pretend to be beneficial, bringing peace and prosperity to their conquered territories. I think novel came out in 1948, penned by a Mr. Orwell.
[ link to this | view in thread ]
Anonymous Coward, 10 Jun 2011 @ 9:02pm

"ICE Declares 'Mission Accomplished' On Domain Seizures"

Their mission was to create a mockery of themselves and, darn it, they succeeded.
[ link to this | view in thread ]
bmcraec (profile), 10 Jun 2011 @ 9:04pm

Re: Re:
Took my a second to work out that IANAL is not a word, but acronym for I Am Not A Lawyer. Just for a second there, I wondered if Apple had launched a new WiFi sex toy.
[ link to this | view in thread ]
bmcraec (profile), 10 Jun 2011 @ 9:06pm

Re:
"he strikes me as a lawyer/lobbyist who is far more interested in advancing his own career than anything else."

You had him at lawyer/lobbyist. The rest of the sentence is redundant.
[ link to this | view in thread ]
bmcraec (profile), 10 Jun 2011 @ 9:10pm

Re: Mission Accomplished
The bizarrest thing is that their very cluelessness means they can't take in any feedback, or actually acknowledge that that have no mastery of anything digital. Let's face it, the best techs don't go into government service. I know. I've worked with government techs. Shudder.
[ link to this | view in thread ]
Josh in CharlotteNC (profile), 10 Jun 2011 @ 9:30pm

Re: Re: Re:
Yeah, when I'm not in a hurry, I usually write that one out instead of abbreviating it. It is common internet parlance, though.
[ link to this | view in thread ]
The eejit (profile), 11 Jun 2011 @ 12:43am

Re: Re:
And then you could scream "u r effecting mah rights!!!" loud and thunderous, and get the media involved.
[ link to this | view in thread ]
The eejit (profile), 11 Jun 2011 @ 12:44am

Re: Re: Lawsuit
And this is a clear First Amendment violation. Hands up who didn't see this coming?
[ link to this | view in thread ]
Karl (profile), 11 Jun 2011 @ 1:01pm

Re: Charges filed?
working within the statutes, 18 U.S.C. Section 2319 and Section 2320

It's telling that he did not even mention 18 U.S.C. Section 512, copyright's "safe harbors" laws.

Though not surprising, since ICE seems to believe it doesn't apply to them.
[ link to this | view in thread ]
bazlejet, 12 Jun 2011 @ 1:25pm

Re:
Turns out the best sites are the ones seized. Now I know all the best places to go. Gee, thanks ICE. LOL.
[ link to this | view in thread ]
ceanf, 13 Jun 2011 @ 8:51am

Re:
i cant stand those people who drudge up the old 'if youre not a criminal then you have nothing to worry about' trash. that is NEVER a reason to infringe on the rights provided to us by our governing document
[ link to this | view in thread ]
Jay (profile), 14 Jun 2011 @ 12:26pm

Budget
So here's a question:

How much does this cost to us, the taxpayer?
[ link to this | view in thread ]
os1, 8 Jul 2011 @ 6:44pm

Re:
Cool. Very well written. Keep fiting the Capitalists-Terrorists!
[ link to this | view in thread ]