Senator Wyden Demands Answers About Feds' Seizure Of Dajaz1
from the you-thought-it-was-going-away? dept
If the feds thought that they could seize the Dajaz1.com blog, hold it for a year in secret, then return it and pretend nothing really happened... it appears they may be in for a bit of a surprise. Senator Ron Wyden has begun his investigation into the matter, sending detailed requests for information from Attorney General Eric Holder, ICE director John Morton and White House IP Czar Victoria Espinel. You can see the three letters embedded below. There are a lot of questions to each of them, with a big focus on who they were talking to about the seizures (e.g., the RIAA) and what they were saying. They also ask questions about the legal basis for the seizures and even the training and procedures involved. I'll certainly be interested to see the replies when they come in...
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Filed Under: constitution, doj, domain seizures, due process, eric holder, fifth amendment, first amendment, free speech, ice, john morton, operation in our sites, prior restraint, ron wyden, victoria espinel
Companies: dajaz1, riaa
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/sarcmarc
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Jehova, Jehova, Jehova
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On a more serious note, I hope Congress really starts questioning DHS and ICE over this, so they put a stop on their ILLEGAL seizures. ICE might act as if SOPA has already passed, but it hasn't. And since their seizures were completely illegal, they must pay for it.
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Given the administrations previous actions
Reason Stated: National Security
Prepared By: [REDACTED]
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™
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You realize ...
Look at how the previous administration "outed" Valerie Plame and nobody was brought to justice. Oh, Scooter got a slap on the wrist for stonewalling the court, but the perpetrators were never even exposed.
We are a sick, sick country on a downward spiral as a world power, and it's our own fault ... the people's fault ... me too.
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Oh, there were consequences where some government officials were embarrassed. But, can you (with a straight face) say that embarrassing government personnel is 'high' level?
Oh, and there are also consequences for the persons that let us know about the many ridiculous activities of governments. Is that 'high' level?
I call the release 'holding accountable', not treason.
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And the "intertube" defense is that he's a "whistleblower"???
Wow, you need to go sign up and do a tour. Get read in and understand the UCMJ.
THEN, you can come back here and make your lame ass statements.
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That had nothing to do with the Wikileaks issues. The CIA got sloppy in being tracked. Hezbollah
And the "intertube" defense is that he's a "whistleblower"???
He was. He opened the Collateral Murder video for open discussion in the world. The government's response in punishing him for 19 months is enough. He was punished far more than any other whistleblower out there. Even Daniel Ellsberg received less jail time for an arraignment, and he blew the whistle on higher level documents
No, the fact is Manning's documents helped to overthrow Tunisia's government, and begin the Arab Springs movement. Because of those cables, we now know the issues with the MPAA and Sweden, Australia, and the UK in trying to enforce more copyright law.
Citation required
Link
They reveal how the US deals with both its allies and its enemies – negotiating, pressuring and sometimes brusquely denigrating foreign leaders, all behind the firewalls of ciphers and secrecy classifications that diplomats assume to be secure. The leaked cables range up to the "SECRET NOFORN" level, which means they are meant never to be shown to non-US citizens.
As the wikileaks story continued, a lot of people began to realize that some of these stories should not have been a secret anyway.
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Not just the response.
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"John is an imaginative leader who thinks outside the box about new ways to address a complex enforcement problem," said Recording Industry Association of America CEO Cary Sherman. "He's not afraid to rock the boat to get results. I'm a big fan."
"Imaginative." I assume that refers to his ability to see lawlessness where none actually exists.
"Thinks outside the box." Always the sort of statement one loves to see rehashed on every single tepid resume ever.
Let's hear what another leader in the "creative" industry has to say:
"John is one of the best. He really gets it — he's about change," said Mike Robinson, the executive vice president of worldwide content protection for the Motion Picture Association of America. "He thinks outside the box and he's very sincere."
"He's about change." Sure is. Things obviously can't stay the way they are, not if DVD dollars are being exchanged for streams of nickels and dimes. An "executive vice president of worldwide content protection" can't be expected to live off whatever's left over in petty cash after the studios crank out $100M movie after $100M movie.
"Thinks outside the box." Yep. I'm assuming he also reads off his coworkers' papers much like Cary and Mike seem to.
"Very sincere." There's nothing more sincere than taking away a website for a year and then suddenly giving it back with no explanation. It's that kind of sincerity that makes this country great. When we steamroll your rights, we mean it, maaaaaan.
The issue here is probably John Morton's office. Not his "office" as in "title," but his actual physical office, with its four walls and a door, which greatly resembles a box (albeit a well-appointed box), in which he is unable to do any thinking.
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Based on his words and actions, I suspect Morton has infringed upon my cat's technique.
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Just a hunch, but it seems quite likely that a former member of his staff is the go-to guy, particularly in view of where that staffer landed a job.
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You really think that a Senator should mind his own business when he comes across evidence of massive censorship and an ensuing coverup by the federal government?
What a world you live in.
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Just for fun, I thought I'd take you up on your challenge.
The only list I could find of Wyden's former staff is from the HillWho site.
I went to every single person's LinkedIn page that I could find. Not one currently holds a job in the "tech industry."
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Dajaz1 comes to mind as the poster child for your comment. What greatly troubles me about it, however, is that its counsel could have very easily forced the USG to defend the seizure in an adversarial hearing before the court had it simply followed longstanding rules within the Federal Rules of Civil Procedure.
The world I live in is one where I deal intimately with our rules of law, and have every reason to believe that the "wounds" suffered by Dajaz1 were almost certainly self-invlicted.
As for Mr. Wyden, it could not be more clear that an unnamed third party (I believe I know who that party is) is trying to use his office as an end-around to both FOIA and civil discovery. There are means at hand under law to require timely responses to FOIA requests and USG reliance on questionable uses of FOIA exemptions. I have used them successfully in the past, so I have a difficult time understanding why counsel does not appear to have used any of them.
Finally, I do understand the concerns articulated with reference to the First Amendment, but to date there has been a distinct absence of specificity by those who have chosen to raise the issue. Yes, there is a high bar to clear in many, if not most, matters associated with the First Amendment, but theoretical possibilities are never a good substitute for the identification of specific facts supporting allegations that the First Amendment has been or is being violated. On this score the supporting data is remarkably thin.
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It is incredibly difficult to raise a case against a secret court and secret documents when one must reference these documents to raise a case. Secret courts such as this are an affront to the people, and to justice, and should NEVER occur.
As for Mr. Wyden, it could not be more clear that an unnamed third party (I believe I know who that party is) is trying to use his office as an end-around to both FOIA and civil discovery. There are means at hand under law to require timely responses to FOIA requests and USG reliance on questionable uses of FOIA exemptions. I have used them successfully in the past, so I have a difficult time understanding why counsel does not appear to have used any of them.
There is little respect to be given to a process that has been subverted in such a manner that those who actually represent the people of this country cannot delve into the possible malpractices and malfeasences of those who work for use. When the government subverts the law to hide their shady dealings, that government must be brought into the light and made to answer for their crimes.
Finally, I do understand the concerns articulated with reference to the First Amendment, but to date there has been a distinct absence of specificity by those who have chosen to raise the issue. Yes, there is a high bar to clear in many, if not most, matters associated with the First Amendment, but theoretical possibilities are never a good substitute for the identification of specific facts supporting allegations that the First Amendment has been or is being violated. On this score the supporting data is remarkably thin.
How specific must one get? The blocking of ALL speech on a published site, and I do believe that blogs are published and should be treated with the same respect of all physical writings, under the unproven pretense that some of the speech might possibly be illegal, I do not think you need to be more specific.
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No, they couldn't, and they were trying to. ICE simply ignored their lawyer's requests, denied them the right to view any of the relevant documents, and filed extensions to the forfeiture deadlines - under seal. Simply put, ICE was not even vaguely following the Federal Rules of Civil Procedure.
Techdirt already ran a story on it.
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If anyone was not following and taking advantage of the FRCP it was the site's counsel.
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This is simply false. Dajaz1 isn't the only one given the runaround, either.
So, unless you can get a single shred of evidence that they could contest the seizures but didn't, I'd say that you need to do your research.
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You have brought this up at least 3 times in the past few weeks. And I have explained each time why that did not make sense.
And yet you keep bringing it up as if I had not responded to you on it.
It makes me wonder why you seem to not be able to comprehend simple English sentences.
The world I live in is one where I deal intimately with our rules of law, and have every reason to believe that the "wounds" suffered by Dajaz1 were almost certainly self-invlicted.
Really? That must be quite a fantasy world you live in when it's "self-inflicted" for a site to be censored with no legal recourse for over a year and then the gov't just hands the domain back.
Finally, I do understand the concerns articulated with reference to the First Amendment, but to date there has been a distinct absence of specificity by those who have chosen to raise the issue. Yes, there is a high bar to clear in many, if not most, matters associated with the First Amendment, but theoretical possibilities are never a good substitute for the identification of specific facts supporting allegations that the First Amendment has been or is being violated. On this score the supporting data is remarkably thin.
We're not talking "theoretical possibilities." We're talking about an entire website full of protected speech seized by the gov't, who then denied them any and all due process by supposedly filing secret extensions via a secret docket and refusing to show that to the counsel of the site.
This isn't theoretical at all.
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His middle finger is clearly in the air, seems like another pirate got away.
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What? This is just flat out lying on your part. He got the domain back, but has yet to relaunch the site in any way shape or form other than the splash page they have up. To claim he's "turning out remixes" is just an outright fabrication on your part.
His middle finger is clearly in the air, seems like another pirate got away.
Do you have *anything* to backup your flat out lie? Of course not. Dajaz1 has not published anything new and has not even relaunched the site yet. Try again.
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Lying bastards
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Injustice
We should also recall in the reply he received that all questions related to RojaDirecta had been completely ignored and most of the the other questions were simply answered with "we do not provide comments on active cases".
I would say good luck to him this time but as seen most people lack faith in ICE airing their dirty laundry without even coming close to just punishment.
This is not to say that we don't want important answers to important questions. The supreme errors made by the RIAA, how the DHS's latest college graduate employee was manipulated, and of course how they can seize this domain a whole year using ultra secret extension orders while denying due process through denying their lawyer a date before a judge to plead his client's case.
This is not open and accountable Government but a dictatorship and any Senator who believes in democracy and accountability should condemn these practices by ICE and the Injustice Department.
Well good luck to him this time.
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Here's something odd. According to the Sunlight Foundation, Patrick Leahy, the sponsor of the PROTECT IP bill, got about $100,000 more from the "Computers/Internet" industry than Ron Wyden did. In fact, that industry isn't even in Wyden's Top 5 industries; but it's #3 on Leahy's list.
Of course, Leahy also got $371,000 from the "TV/Movies/Music" industry, making that his #2 industry, right behind law firms. So, there's that.
Also, the only tech company in Wyden's Top 20 contributors is Intel, who gave him $24,000. I'm at a loss to guess why Intel would have anything to do with Wyden's questioning of ICE.
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Who are the clients of those firms?
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We can hope all these documents are condemning but they are unlikely to sign their death warrant. We can at minimum hope to better understand and criticise the operation of ICE and the DOJ.
Then it is on to waiting for their next glorious failure which seems quite likely due to their large lack of understanding on what they are about to seize.
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Pray tell what crimes have been committed by the USG. It went to a public, non-secret court, requested a court order based upon evidence in hand, the court determined that probable cause existed, and an order was issued by the court.
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Pray tell what crimes have been committed by the USG. It went to a public, non-secret court, requested a court order based upon evidence in hand, the court determined that probable cause existed, and an order was issued by the court.
No one's talking about the initial affidavit.
Look the following facts are incontestable:
* Under the process, once the domain is seized, the government has 60 days to notify the site owner.
* The site owner has 35 days to request its return
* The government then has 90 days to begin forfeiture *or* return the seized property.
Thus, within 185 days, the government either needs to return the property or start forfeiture. It did neither.
* The site was returned more than 370 days after it was seized.
You seem to be ignoring this entirely for reasons unknown. If there was no "secret docket" then please explain the extra ~200 days.
Thanks.
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Why counsel did not appear before the court is not at all readily apparent. Exchanges of communication before a lawsuit is commenced is commonplace. Continuing to rely on such a means of garnering information after filing and without making an appearance before the court is most certainly not commonplace.
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If you are talking about the notice as required by 18 USC 983(a)(1), nobody from the government ever sent any such notice. The seizures were done ex parte, and no such notice was provided, either before the seizures, or at any time afterwards.
From Mike's description, I'm guessing they used 18 USC 983(a)(1)(C) to keep extending the deadline for initiating the forfeiture proceedings. And until they did, apparently they thought they didn't have to send any kind of notice whatsoever to the site owners or operators.
And, furthermore, all of the documents extending the deadline - and all other documents - were kept under seal, and could not be released even in redacted form.
At least, that seems to be what the government is claiming. Not that anyone can tell - since no notice or paperwork was ever provided to Dajaz1's lawyer at any time. For all anyone knows, after the initial warrant, it's entirely possible that no judge anywhere in the country even set eyes on the case at all.
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You keep saying that and I've explained to you 3 times what they did and why they followed the proper procedure.
Why counsel did not appear before the court is not at all readily apparent. Exchanges of communication before a lawsuit is commenced is commonplace. Continuing to rely on such a means of garnering information after filing and without making an appearance before the court is most certainly not commonplace.
You really want to stick your fingers in your ears, and cover your eyes, and pretend that we didn't answer this?
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I can think of a few reasons why counsel may have chosen not to do so, but to suggest he was cut out of the process entirely is simply not right when it comes to a lawsuit pending before a federal district court. He could have filed an appearance at any time following the seizure and thereby forced the government's hand.
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This was not a lawsuit. No lawsuit was ever pending before any court. This was a seizure in a criminal case. The legal process regarding seizures is very different from the process regarding lawsuits.
They are also different from the regulations regarding forfeiture proceedings - which never happened, because the government kept filing motions, under seal, unavailable to Dajaz1's lawyer in any form whatsoever, delaying the initiation of forfeiture proceedings.
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To be clear: it was a civil seizure, as opposed to a criminal seizure (which applies only to seizing goods after a conviction), but it was a civil seizure in a criminal investigation.
And 18 USC 981 does not apply to copyright seizures. If you look at the statutes enumerated in 981(a)(1), they refer to things like bank fraud, money laundering, motor vehicle theft, or terrorism. Copyright infringement isn't mentioned.
As far as I can tell, the proper statute is 18 USC 983. The government failed to provide notice, likely using 983(a)(1)(A)(ii) as justification, then extended the time they had to initiate forfeiture proceedings, likely using 983(a)(1)(C) to justify that. Then put all of those extensions under seal.
I say "likely," since nobody ever saw any paperwork, and to this day, there's no evidence that it even existed. No court docket, no placeholders in PACER, nothing.
No notice was sent to the site or its legal team, either before the seizure, nor at any time afterwards. And they couldn't fight it in court until the government initiated the actual forfeiture proceedings - which they never did. The end result? They were totally shut out of the process.
As far as Mike's theory that the federal government threatened a criminal investigation if the sites contested the seizures: this kind of thing happens all the time, and not just with copyright infringement cases. For example, it's exactly what the government did in the Rojadirecta case.
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Incidentally, I got to there through the reference to "chapter 46" in 18 USC 2323(a)(2). Whether 983 is the proper statute or not, the government is apparently also proceeding according to Rule G of the FRCP. (Interesting, then, that they totally disregarded G(4)(B).)
G(5) is the relevant statute in this case. Under G(5)(a)(1)(D), claims must "be served on the government attorney" (not the court). This is what Dajaz1's lawyer did; and the government attorney simply ignored the claims altogether.
(Sorry, I couldn't include links directly to the paragraphs - the Cornell page doesn't have bookmarks.)
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You correctly note that 18 USC 2323(a)(2) pertains, but it should be noted that 18 USC 2323(b) also pertains as it is the tie-back to 18 USC 891. Of course, it would have been much easier if 891 simply referenced 2323 directly.
The FRCP rule you recite pertains specifically to a forfeiture action, but, by my reading, not to a seizure itself. It, again by my reading, essentially defines how a forfeiture proceeding is to be conducted.
Now, where things get a bit dicey is that though the site is registered in the US, the characteristic common to all of the domains that were seized, it is not at all clear who actually owns/runs the site and where he/she/they reside.
In the US? Outside the US? If within the US, it does seem to me that in personam jurisdiction could have been secured against those who own/run the site. One problem I have always had with domain name registries it that it is many times impossible to determine the name and residence location of the person actually registering the site. If such information was available it would greatly simplify the process for determining the proper avenues to employ in proceeding against the site and/or owner/operator.
In summary, it is my understanding that 981 applies because of 2323, a motion to the court for the return of seized property is an intergral part of 981, and that Rule G does not come into play at the seizure stage. Whew, I almost feel as if I am working a calculus problem whenever I am trying to link disparate statutory provisions into a coherent scheme capable of being understood, and I have been doing this for almost 33 years! Anyone who practices law who states this is not a difficult task is either lying or is clueless.
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(I assume you mean 981, not 891, which contains definitions and rules of construction for "extortionate credit transactions.")
18 USC 2323(b) pertains to criminal forfeiture - that is, forfeiture "in imposing sentence on a person convicted of an offense."
Nor does it reference 18 USC 981. I don't know where you got that idea. It references 21 USC 853, "Criminal Forfeitures" (naturally enough). No part of 18 USC 2323 is referenced anywhere in 18 USC 981.
it is not at all clear who actually owns/runs the site and where he/she/they reside.
That would be easy to ascertain with a subpoena to the webhosts, who are required to give that information, or lose safe harbors.
And you'd give up the ability to hide your information from a WHOIS lookup, just to give the government a better ability to suppress speech? That's kind of alarming.
Also, merry Xmas!
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"The provisions of chapter 46 relating to civil forfeitures shall extend to any seizure or civil forfeiture under this section."
2323(a)(1)(B) relates (See: 18 USC(a)(1)(A))to 17 USC 506 (copyright infringement), and 2323(a)(2) relates to the civil forfeiture provisions of Chapter 46 to Title 18.
Sorry, but it is difficult to keep letters and numbers straight when switching back and forth between multiple IE 9 windows.
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Yeah, but that's the trick: the statute doesn't say which Chapter 46 provisions, and most of them pretty obviously don't apply to copyright seizures. Since copyright seizures are not mentioned at all in 981, which explicitly lists all statutes for which it applies, I'd say that the general rules are the ones that do apply.
Obviously, I'm not a lawyer.
Now, off to eat Xmas dinner.
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BTW, its 981 because it is the section in Chapter 46 that deals with subject matter subject to civil seizure.
I know you are NAL, but I can assure you that on the copyright learning curve you are well past many lawyers I have met who strut before clients and tell them they are copyright experts.
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The process was clear. You can request the property back and the government has 90 days to give it back. It failed to do so.
As for trying to speed up matters by filing in court, how many times do I need to tell you: the US gov't warned him not to do that, or it would file all sorts of questionable *criminal* charges against his client as a form of retribution.
Any lawyer with any sense of reason wants to stay out of having his clients charged with bogus criminal charges.
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I do not recall the original quotes attributed to Mr. Bridges mentioning anything about threats, so I am not aware of where this additional information arose. If it arose from quotes attributed to Mr. Bridges and presented elsewhere, then I am highly skeptical as to their veracity. US Attorneys are not dumb, and it would be the height of dumb to make any such suggestion to opposing counsel, not to mention illegal and grounds for almost certain disciplinary action by the bar. It would also be the height of dumb for any attorney to make such statements in public concerning any US Attorney, and I have no reason to believe that Mr. Bridges is prone to make statements of such a nature. Now THAT would most certainly come back to haunt both the attorney foolish enough to make them and the client foolish enough to have such an attorney on retainer.
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That's because he didn't mention it. I learned it from another source, who I cannot divulge, but trust me: it's 100% accurate.
so I am not aware of where this additional information arose.
Bullshit. I've told it to you directly 3 times already. This was the fourth. Every time we've discussed this case, you bring up the same ridiculous claim, and I tell you why it happened the way it did.
If it arose from quotes attributed to Mr. Bridges and presented elsewhere, then I am highly skeptical as to their veracity.
No, it did not come from Mr. Bridges.
US Attorneys are not dumb, and it would be the height of dumb to make any such suggestion to opposing counsel, not to mention illegal and grounds for almost certain disciplinary action by the bar.
You can't be that naive. You don't think this is how they act all the time? Holy crap. I've got a bridge to sell you leading to an outer borough...
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You note that Mr. Bridges was not the source for the information about the alleged threat, a threat presumably made by a US Attorney. My recollection is that to date all references to what the DOJ said were attributed to Mr. Bridges. Thus, whoever related the threat to you was either someone who talked with him, someone who was present when it was allegedly made, or someone who heard about it second hand. Perhaps it is true, but I am inclined to be skeptical of third party accounts that are hearsay.
I take it you do not really own a bridge that you have available for sale. If I am mistaken, feel free to send me a prospectus and I will give it fair consideration.
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The way one makes such a request in a pending lawsuit is to make an appearance before the court and file a motion for return of the property. Just like the court issued the order for seizure, it could have, after listening to both sides at a motion hearing, rescinded its prior order and issued a new one requiring that the property be returned.
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