Press Realizing That ICE May Be Breaking The Law Showing NBC Universal Propaganda Films On Domains It Seized

from the oops dept

Tue, Nov 29th 2011 1:35pm — Mike Masnick

Over the last year or so, we've been one of the few publications out there following the exceptionally questionable use of NBC propaganda material by the federal government as if it were its own content. You may recall that NBC Universal created some propaganda "anti-piracy" PSAs for New York City, in which actor/comedian Tom Pappa claims "there's no such thing as a free movie." The irony that he's saying so while appearing on a free YouTube video stream is apparently totally lost on him.

A few months later, the same video, minus references to NYC, appeared on the YouTube page of the Immigrations & Customs Enforcement group ICE (part of Homeland Security). No reference was made to the fact that the video was created by NBC Universal. A few weeks later, these videos started appearing on domains that ICE had seized, and then forfeited.

After filing a series of Freedom of Information Act requests, we found out that the videos were property of NBC Universal -- something that ICE (to this day) refuses to disclose. Further FOIA requests turned up no records of ICE ever properly licensing the video.

Already, this should be exceptionally troubling. ICE running corporate propaganda without any disclosure? And doing so on websites it had seized under questionable legality?

Turns out the story gets even worse. Jeff Roberts over at PaidContent notes that, under civil forfeiture procedures, the federal government must sell or destroy forfeited property. It cannot keep it and use it for itself. It does not appear to be legal to make use of the property for other purposes -- and certainly not for spreading corporate propaganda without disclosure.

The article also points out, quite reasonably, that it seems odd that ICE is using these videos -- which present a ridiculously inaccurate and one-sided argument that "piracy" is taking away movie industry jobs -- on web sites seized & forfeited for trademark violations. That seems extra weird. The sites have nothing to do with downloading movies, as the video discusses. And do the big brand companies that urged ICE to seize these domains to "protect their trademarks" really feel comfortable with the federal government now running NBC Universal propaganda on those domains instead?

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Filed Under: forfeiture, government, ice, psa, seizure

36 Comments

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Chris Rhodes (profile), 29 Nov 2011 @ 1:49pm

A Way Out
Obviously, ICE will have to forfeit its domain and other resources to itself in order to comply with the law.
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Jay (profile), 29 Nov 2011 @ 1:55pm

Wait... ICE has to sell forfeited property? So ICE has given themselves the right to abuse copyright law, to make more money through asset forfeiture which is a proven scam to make police officials money?
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:Lobo Santo (profile), 29 Nov 2011 @ 1:57pm

Re: Yep
Affirmative, so it's business as usual in law enforcement land.

I could swear somebody mentioned something along these lines awhile back...

http://www.techdirt.com/articles/20111128/01460616907/ice-seizes-another-150-domains-as-s opapipa-debate-heats-up.shtml#c167
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gorehound (profile), 29 Nov 2011 @ 2:07pm

Well I guess ICE feels it is above the law ?
And I also figure that even though we can expose the lies we maybe can't do a thing about it.
Would be good if we could do something as this sounds illegal to me but I am not a lawyer or law student.
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Jay (profile), 29 Nov 2011 @ 2:34pm

Re: Re: Yep
And here's the messed up part. ICE is looking to make the properties they've seized pay them to release the properties. It's the exact same concept as the drug war with police or the apportionment money that ICE is getting from Congress to deport 400K illegals every year. Their policies and procedures are money grabs.

Ok, I thought I wouldn't have to but how much ridiculousness do we have to go through every month until someone realizes WTF is up with our government?

We have TSA using bad scanners for fake security

We have the FBI overstating their own importance with their bomb plots.

We have the EPA showing how a lie can destroy someone's livelihood.

And ICE has been the police for the MPAA and RIAA for quite some time. Obviously, what does it take to get a fair trial and a chance to plead your case when the federal government are the crooks? They bend the law five ways from Sunday and the damage of what they do devastates all of their targets. You're left with little money to defend yourself and a sense that justice was not carried out. And for what purpose? So ICE can think that they can continue this same process and procedure to destroy people's lives to save Hollywood? #areyouseriousbro?
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Anonymous Coward, 29 Nov 2011 @ 2:52pm

So will ICE have to forfeit the domains? How long can they keep them?
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Anonymous Coward, 29 Nov 2011 @ 3:00pm

Re:
According to Masnick they have already forfeited ... "..A few weeks later, these videos started appearing on domains that ICE had seized, and then forfeited. "

Which seems to contradict his claims that they have not been forefeitted, but as we know this blog plays by Masnick rules of journalistic integrity.
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MrWilson, 29 Nov 2011 @ 3:05pm

Re: Re: Re: Yep
Patronizing and disingenuous cliche response from the 1% and their shills: "If you don't like it, write your congressman."
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Anonymous Coward, 29 Nov 2011 @ 3:05pm

Re: Re:
"but as we know this blog plays by Masnick rules of journalistic integrity"

Which, for those of you following along at home, means repeatedly saying you are not a journalist and this is your opinion and these stories are simply what interests you and/or things you would like to discuss while being accused of biased journalism by the same guy over and over again.
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The Groove Tiger (profile), 29 Nov 2011 @ 3:09pm

ICE, a NBCUniversal Company.
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MrWilson, 29 Nov 2011 @ 3:15pm

Re: Re:
You're confusing the use of the term "forfeit." As a verb, it has two meanings. The more common use is when a person gives up or has something taken from them as a penalty for some offense. "We had to forfeit the game because we didn't have enough players." The second use is when someone (in this case, the feds) forces something to be surrendered. So when Mike says that they were seized and forfeited, those were the actions of the feds in taking both the domains and the ownership of the domains. The feds have not sold or destroyed the "property" and thus are violating the forfeiture laws.
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Anonymous Coward, 29 Nov 2011 @ 3:18pm

Re: Re:
Thank you for proving you do not know how to read.
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Marcus Carab (profile), 29 Nov 2011 @ 3:27pm

Re: Re:
a) you clearly can't read

b) you know there have been multiple rounds of domain seizures, right? and that different waves of Operation In Our Sites are at different stages of seizure and forfeiture proceedings? Because that should clear up the discrepancy you are imagining.
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Digitari, 29 Nov 2011 @ 3:34pm

Re: no suprise
left hand | right hand

Never attribute to conspiracy to that which can be explained by incompetence
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Anonymous Coward, 29 Nov 2011 @ 3:46pm

Turns out the story gets even worse. Jeff Roberts over at PaidContent notes that, under civil forfeiture procedures, the federal government must sell or destroy forfeited property. It cannot keep it and use it for itself. It does not appear to be legal to make use of the property for other purposes -- and certainly not for spreading corporate propaganda without disclosure.

Roberts quotes Section 853. That section only applies to criminal forfeitures. These are civil forfeitures, so that section doesn't apply.

If you look at 18 U.S.C. 2323, which is the right section to be looking at, you'll see that it says: "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." Source: http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00002323----000-.html

So, the domain names should be "destroyed, or otherwise disposed of according to law," but only "at the conclusion of the forfeiture proceedings." Additionally, "an agency of the United States" can simply request "otherwise."

Importantly, you need to distinguish between a domain name that's only been seized as compared to one that's been forfeited. According to ICE: "Of the 350 domain names seized, 116 have now been forfeited to the U.S. government." So that's 116 that are forfeited, and 234 that have been seized but not yet forfeited. Source: http://www.justice.gov/opa/pr/2011/November/11-ag-1540.html

Of those 116 that have been forfeited, how many have been "destroyed"? And how many have been "otherwise requested"? Without knowing this, it's hard to understand what basis you or Roberts have for deciding that this use of the domain names is illegal. If anything, the statute makes clear that the forfeited property need not be destroyed and that it may be used by an agency.

I see nothing in the statute that would prevent the government's use of the domain names in the way they're using them.
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Thomas (profile), 29 Nov 2011 @ 4:06pm

When..
has any government agency worried about breaking the law? They all believe they are immune since they are the government. Doesn't matter if it's an agency (ICE/FBI/CIA/FCC/etc) or Congress or the White House; they all feel free to ignore any law they choose to. The spooks are the worst - they know that no one will dare to question them.

The ICE proceedings are driven not by law, but by greed from businesses. They pay quietly under the table and the agencies need the money so they go ahead and do what they are paid to do. Most countries call this bribery, here we call it business as usual.
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Mike Masnick (profile), 29 Nov 2011 @ 4:16pm

Re: Re:
According to Masnick they have already forfeited ... "..A few weeks later, these videos started appearing on domains that ICE had seized, and then forfeited. "

Forfeited is the process they use after seizing to take control over the domains permanently.

The commenter above meant "get rid of" the domains by forfeiting them.

It's confusing, I know, but everyone else seemed to get it.

Which seems to contradict his claims that they have not been forefeitted, but as we know this blog plays by Masnick rules of journalistic integrity.

Huh? Which of my claims was contradicted?
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Jeffrey Nonken (profile), 29 Nov 2011 @ 4:46pm

Pappa is absolutely correct. There is no such thing as a free movie.
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Jeffrey Nonken (profile), 29 Nov 2011 @ 4:50pm

Re:
Oops. Fair warning: you need to install Steam to get the movie via that link.
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Rekrul, 29 Nov 2011 @ 6:31pm

Re:
Hardly the definition of the word "free", otherwise it would be available through other sites without having to install Steam.
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Ima Fish (profile), 29 Nov 2011 @ 6:38pm

"it seems odd that ICE is using these videos -- which present a ridiculously inaccurate and one-sided argument that "piracy" is taking away movie industry jobs -- on web sites seized & forfeited for trademark violations"

It's not odd at all. The IP industry and the governments it bought want to conflate copyrights, patents, trademarks, publicity rights, etc into one huge group. If you can't shut down a blog because of fair use, then shut it down for diluting trademarks. If that doesn't work, shut it down for interfering with publicity rights. If that doesn't work sue the ISP for patent infringement.

Despite completely different origins and legal backgrounds, patents, copyrights, trademarks are now all tools for eliminating competition, the exchange of ideas, and free speech.
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Anonymous Coward, 29 Nov 2011 @ 9:29pm

Re:
The internet in undoubtedly the most beneficial means invented to date that facilitates communications. Unfortunately, a large number of internet users are of the mindset that because they can do it, then there is nothing wrong with taking the original works of others and sending it around the world without the slightest thought or concern about the impact of such actions on the creators of such original works. You can call the creators selfish until you are blue in the face, but that does little to change the fact that the most selfish of all are those who have not the slightest reluctance to distribute material for which they have expended no time, labor, and expense to create such works in the first place.
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Bergman (profile), 29 Nov 2011 @ 10:50pm

So given how ICE seems to have "stolen" that PSA video...if SOPA passes, can we report ICE for being devoted to the theft of U.S. property, and get their DNS turned off?
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Prisoner 201, 30 Nov 2011 @ 12:26am

Re: Re:
You have convinced me. I have now reported my parents to the Police for replicating hundreds if not thousands of stories, traditions, knowledges and proverbs.

Works that they expended no time, labor or expense to create. They just distributed it it. Without the slightest reluctance.

I am ashamed to be the child of such selfish persons. Verily, they should be severely punished.
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Prisoner 201, 30 Nov 2011 @ 12:28am

Re:
Thir webpage would have to be redirected to an ICE site with the PSA video and we would have created an infinite loop.

The entire internet would be sucked into a dev/null singularity. It would be the infocalypse.
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Anonymous Coward, 30 Nov 2011 @ 1:20am

Re:
Shocking! Mike Masnick fails to investigate, ignores critical facts, and is nowhere to be seen when called out on his bullshit anti-IP propoganda. Thanks to Anon 3:46 for showing what real legal research is.
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PaulT (profile), 30 Nov 2011 @ 1:30am

Re: Re:
You mean like this?

http://www.youtube.com/watch?v=ShcOJswXnXQ

Oh, and there are several different definitions of "free" due to the vagaries of the English language. That's why there's so many arguments in the software community about, for example, "libre" vs "gratis" when people bring up "free". But, it's certainly possible to have a film that's free (no payment required) without being free (unrestricted).
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PaulT (profile), 30 Nov 2011 @ 1:33am

Re: Re:
That's fine. but if your reaction is to say "well then nobody can buy it", address clear customer demands or fail to take advantage of the many benefits that the internet affords creators, then you're a fool.
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Anonymous Coward, 30 Nov 2011 @ 1:38am

Re: Re:
Shocking! Shilltards are grasping at straws!
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DannyB (profile), 30 Nov 2011 @ 5:50am

Re: Re: Re: Re: Yep
You left off the last two words: "a check".

Write your congresscritter a check.
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Hephaestus (profile), 30 Nov 2011 @ 6:28am

Re: Re: no suprise
"Never attribute to conspiracy to that which can be explained by incompetence"

There is no way people could be that incompetent ... and thus there must be a plan behind it ... ;)
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Anonymous Coward, 30 Nov 2011 @ 12:59pm

Re: Re: Re:
Anon 1:38am

How is it grasping at straws when Anon 3:46 is actually citing the correct law? According to you, the freetards like Mike Masnick and that jackass at PaidContent are the ones grasping at straws by making bullshit arguments around incorrectly cited portions of the law.
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Karl (profile), 30 Nov 2011 @ 9:49pm

Re:
If you look at 18 U.S.C. 2323

...the first sentence of (a)(2) reads:

The provisions of chapter 46 relating to civil forfeitures shall extend to any seizure or civil forfeiture under this section.

So, now we need to go to 18 USC ch.46 981(c), which states this:

Whenever property is seized under this subsection, the Attorney General, the Secretary of the Treasury, or the Postal Service, as the case may be, may�
(1) place the property under seal;
(2) remove the property to a place designated by him; or
(3) require that the General Services Administration take custody of the property and remove it, if practicable, to an appropriate location for disposition in accordance with law.
Notice that the A.G. may not use the property; they may only place it under seal, remove it, or dispose of it.

Furthermore, going back to 18 USC 2323(a)(2), the second sentence reads:

For seizures made under this section, the court shall enter an appropriate protective order with respect to discovery and use of any records or information that has been seized. The protective order shall provide for appropriate procedures to ensure that confidential, private, proprietary, or privileged information contained in such records is not improperly disclosed or used.
Again, the A.G. is explicitly not allowed to "use" the property.

Furthermore, pay attention to the sentence you quoted:

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.
"An agency of the United States" may request that the property not be destroyed or disposed of, but that does not give them the right to use the property. They are still limited to acts enumerated in 981(c): the property must still be under seal and protective order.
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Ilfar, 30 Nov 2011 @ 9:56pm

Re: Re: Re:
If that's the worst you can find to report your parents for, I salute them. They lead a better life than I.
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Karl (profile), 30 Nov 2011 @ 10:17pm

Re: Re:
going back to 18 USC 2323(a)(2), the second sentence

...actually applies only to "any records or information" that has been seized.

If the government was arguing that the domain names were seized as evidence, then of course that would apply (since a domain name's only value as evidence is as a record of which server it pointed to). When this first started, I (and others) thought that was what they were arguing.

However, it is not; they are arguing (unconvincingly IMHO) that it is "property" used to "commit or facilitate" a criminal act.

So, the "protective order" would probably not apply here.

The rest, however, does. Incidentally, you can also compare 18 USC 981(c) to 18 USC 981(e), which uses specific terms for what the A.G. may do: "retain," "transfer," or "detention." No mention is made, at any time, of the A.G. (or any other law enforcement agency) being able to use the property.
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Rekrul, 1 Dec 2011 @ 9:56am

Re: Re: Re:
Thanks for the link. I'm so used to short films NOT being available on YouTube, that I've mostly given up looking for them.
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