ICE Reluctantly Releases A Small Number Of Heavily Redacted Domain Seizure Docs, Holds The Rest Hostage

from the but-of-course dept

Tue, Oct 9th 2012 9:28am — Mike Masnick

Back in December of 2010, Aaron Swartz filed a Freedom of Information Act request regarding the Immigrations and Customs Enforcement (ICE) efforts to seize, without any notification or adversarial hearings, domain names which ICE claimed were facilitating copyright and/or trademark infringement. After nearly two years of back and forth (including ICE apparently losing an updated request and closing the request because of it), ICE has finally delivered 100 pages worth of heavily redacted material which are close to useless. They are also claiming that there are another 16,137 records out there, but they want him to pay over $1,000 to get the rest. They told him if he didn't cough up the money within a few days, they would consider the request closed. Aaron, with the help of the Muckrock site (which helps people file FOIAs), is appealing this decision.

In the meantime, however, we have 100 mostly useless documents that appear to just show the warrants that US Magistrate Judge Alan Kay approved on the morning of November 23rd, 2011. Of course, these are completely redacted, so you don't even know what domains they're referring to. In going through the documents, the only thing of interest that I spotted was that the judge time stamped each warrant signature, and many of them are mere minutes from one another -- at least raising some questions concerning how carefully the judge reviewed each individual case before granting the warrant that allowed the feds to then seize and shut down those sites. Considering that we already have two known cases -- Dajaz1 and Rojadirecta -- in which it later came out that the government did not have the necessary evidence, and where the feds were embarrassingly forced to hand back the domains and drop legal proceedings, it seems that a judge should be expected to at least spend some time understanding why it is he's signing off on an order to take down speech.

Either way, it really does seem like these documents being the first 100 released was, perhaps, done on purpose, to make sure the released documents don't actually get at what Swartz actually requested, which was:

Any guidelines or protocols for ICE agents about the procedures for seizing domains
Any communications between ICE and other government agencies with regard to the seized domains
Any communications between ICE and intellectual property owners requesting domains be seized or discussing seized domains
Any court filings requesting authorization to seize domains
Any internal emails mentioning the seized sites
Any legal memos mentioning the seized sites

Instead, he gets 100 pages of heavily redacted warrants? What a joke. And, is it that difficult to expect that a judge will take more than a minute or two to understand the issues at hand when signing off on a warrant to completely shut down a website with no adversarial hearing with the site owner?

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: aaron swartz, domain seizures, foia, ice, redacted

53 Comments

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

Reader Comments

Subscribe: RSS

View by: Time | Thread

Michael, 9 Oct 2012 @ 9:44am

[ link to this | view in thread ]
Lord Binky, 9 Oct 2012 @ 9:46am

You can't release what doesn't exi...*turns away* You done with the shredder back there Paul? Excellent. *looks back* Ahem,Sorry about that. Now, where was I? Ah, yes. You can't release what doesn't exist.
[ link to this | view in thread ]
Wes, 9 Oct 2012 @ 9:51am

Judging by the time stamps I would also assume the judge did not visit each site before authorizing its removal.
[ link to this | view in thread ]
DMNTD, 9 Oct 2012 @ 9:53am

no....
He is an out of touch ninny.
[ link to this | view in thread ]
Ninja (profile), 9 Oct 2012 @ 9:53am

So basically they want $1000 to keep treating the public like idiots and keep taking dumps on the US Constitution...
[ link to this | view in thread ]
Anonymous Coward, 9 Oct 2012 @ 9:57am

Did the government really send him two copies of the same warrants? (pages 1-44 and 45-88 are the same)
[ link to this | view in thread ]
Anonymous Coward, 9 Oct 2012 @ 10:05am

this disgraceful practice should be pursued through the courts further. none of the sites seized could possibly have threatened national security, unless of course they were giving instructions on how to produce a nuclear device from a 3D printer so the only reason to not issue unredacted documents is to stop the real issuers of the take downs from being revealed and to stop the issuing judge from being held accountable for not checking the warrants he was allowing.
[ link to this | view in thread ]
Another AC, 9 Oct 2012 @ 10:06am

Re:
I will gladly take a dump on the constitution for a mere $500! I'll even treat the public with respect while I do it... it's a bargain! :)
[ link to this | view in thread ]
Nathan F (profile), 9 Oct 2012 @ 10:09am

Re:
Maybe the differences are hidden under all the black ink?
[ link to this | view in thread ]
Anonymous Coward, 9 Oct 2012 @ 10:13am

Re:
Exactly, the redaction has nothing to do with sensitive information, and is simply an insurance policy because they know they screwed up again somewhere. If this was so sensitive, they wouldn't be patting themselves about seizing Megaupload, TVShack, and other high profile domains.
[ link to this | view in thread ]
The eejit (profile), 9 Oct 2012 @ 10:15am

Re: Re:
Such a waste of black ink! That ink could have been used for black and white pictures of BOOBIES!!!!
[ link to this | view in thread ]
Machin Shin (profile), 9 Oct 2012 @ 10:17am

Re:
What is really funny though is that instructions to build a nuclear device are easily available online. It actually is not even that terribly hard to build. We are talking about something that was invented in late 1930s early 1940s. The difficulty is getting materials.

More to the point though. These sites that were taken down were not some great nation security threat. You would also have a very very hard time convincing me they had a valid excuse for redacting the domain names they took.
[ link to this | view in thread ]
Anonymous Coward, 9 Oct 2012 @ 10:19am

Hard to believe that a guy facing serious jail time would be stupid enough not to keep a lower profile. Whether he's right or wrong, it makes no sense for a defendant under federal indictment to raise his profile in an antagonistic way like this. Federal judges and US Attorneys operate under broad-ranging discretion. Why on earth would Swartz put him self out there like this when the same FOIA could be tendered by his lawyer or someone not facing felony charges?
[ link to this | view in thread ]
Anonymous Coward, 9 Oct 2012 @ 10:38am

And, is it that difficult to expect that a judge will take more than a minute or two to understand the issues at hand when signing off on a warrant to completely shut down a website with no adversarial hearing with the site owner?

I don't know if you are slow or just refuse to acknowledge that a seizure is simply the arrest of property. Do you expect there to be a full blown adversarial hearing before an accused embezzler can be arrested? Do you see any problem with that?
[ link to this | view in thread ]
rubberpants, 9 Oct 2012 @ 10:47am

Re:
"Do you expect there to be a full blown adversarial hearing before an accused embezzler can be arrested?"

No, but I would expect one before his property is seized.
[ link to this | view in thread ]
Anonymous Coward, 9 Oct 2012 @ 10:49am

Re:
Alright, I'm going to a judge to accuse you of embezzlement. If they don't take away all of your property (real and imagined) then they aren't doing their jobs.

I'll bet that once they find out it's bogus you'll be perfectly happy with the way they seized your assets, and perfectly happy to give them up again when someone else gets the idea to prove the same point.
[ link to this | view in thread ]
Lord Binky, 9 Oct 2012 @ 11:02am

Re: Re:
I really hate my dry cleaner, they charge to much. I'm going to accuse them of money laundering, then they get their business shut down for a year until police figure out by launder money I ment they washed money, hahahahaha. That'll teach them not to do things I don't like.
[ link to this | view in thread ]
RonKaminsky (profile), 9 Oct 2012 @ 11:05am

Re:
Did ICE take down the content of your post?
[ link to this | view in thread ]
RonKaminsky (profile), 9 Oct 2012 @ 11:09am

Re:
> Hard to believe that a guy facing serious jail time would ...

Maybe he's not an Anonymous Coward?
[ link to this | view in thread ]
Jesse (profile), 9 Oct 2012 @ 11:18am

Can somebody explain to me how sites such as a megaupload have anything to do with national security? How are they allowed to redact this stuff?

It would be nice if we could have a website similar to chilling effects where people can submit censorship and redactions that clearly have absolutely nothing to do with national security.
[ link to this | view in thread ]
Michael, 9 Oct 2012 @ 11:21am

Over 100 domains seized practically overnight w/o due process, based on nothing except accusations thrown around by the ICE. Let that sink in. Technically, all they need do at this (disgraceful) point is point their finger at something they don't like and it's gone.
[ link to this | view in thread ]
gorehound (profile), 9 Oct 2012 @ 11:22am

Re:
Why do you think they call it a "Rubber Stamp" .
[ link to this | view in thread ]
Anonymous Coward, 9 Oct 2012 @ 11:26am

Re: Re: Re:
Oh, can I get in on it so we can make it class action?
[ link to this | view in thread ]
Anonymous Coward, 9 Oct 2012 @ 11:30am

Re: Re:
So when they moved on Bernie Madoff, they should have held a hearing before seizing his assets? Why, to afford him the opportunity to hide them or to transfer control to a third party before the hearing? That not the way the law works, nor does it make sense.
[ link to this | view in thread ]
Thomas (profile), 9 Oct 2012 @ 11:48am

Smart judges..
keep their mouths shut and rubber stamp every seizure; if they don't bad things will happen to them. No smart judge is going to deny a request if he values the safety of himself and his family.
[ link to this | view in thread ]
Thomas (profile), 9 Oct 2012 @ 11:50am

Re:
"broad-ranging discretion" should read "do whatever the hell they feel like"
[ link to this | view in thread ]
Baldaur Regis (profile), 9 Oct 2012 @ 11:57am

Re: Re:
Look closely at blacked out areas: each one appears to have dimensional info on it (e.g., 10X7 ????). Somewhere, there's a GSA form whereby US agencies can order a Big Book of Redaction Areas, Black, Dimensional, Assorted. My FOIA request would be:

1: Are the redacted areas reusable or are they one-off?
2: Did they change to Redacted Areas because people were getting too high on highlighter/black Sharpie fumes?
3: Who owns the copyright on Redacted Areas?

I would love to see a headline like "FOIA request for Redacted Area information is itself redacted"
[ link to this | view in thread ]
Anonymous Coward, 9 Oct 2012 @ 12:12pm

Re: Re:
Except that, like with seeking an arrest warrant, the order has to be sought by law enforcement. Joe Jerkoff (that'd be you) can't just walk in off of the street and seek a seizure order.
[ link to this | view in thread ]
rubberpants, 9 Oct 2012 @ 12:15pm

Re: Re: Re:
Sure he can. He just has to be the head of the RIAA.
[ link to this | view in thread ]
This comment has been flagged by the community. Click here to show it

Anonymous Coward, 9 Oct 2012 @ 12:22pm

Re: Re: Re:
The people here on Techdirt aren't interested in logic or things making sense.

They're interested in stealing content and not being punished for it.
[ link to this | view in thread ]
Anonymous Coward, 9 Oct 2012 @ 12:34pm

Not sure why eveyone's talking about national security.

The exemptions claimed were as follows:

Privacy Act Exemption (j)(2) - completely inapplicable and unprofessional. Privacy Act Exemptions don't work that way, and this is purely a FOIA request.

FOIA Exemption 6 - Personal privacy. Generally noncontroversial, though subject to accusations of overclaiming.

FOIA Exemption 7(C) - Personal privacy wrt information collected for law enforcement purposes. Stronger protection than exemption 6, due to the potentially heightened sensitivity of law enforcement records.

FOIA Exemption 7(E) - Risk of circumvention. If they disclose how they enforce laws, the precise methods of investigation, etc., a reasonably clever criminal will be able to circumvent the laws/enforcement.

7(E) is in a general sense legitimate here, but also potentially subject to huge overclaiming.

The FOIA is a (relatively) straightforward law with a significant background of court precedent, and DOJ had published the DOJ interpretations and business practices for processing FOIA requests in an indexed publicly available form.

Also, technically, the warrants are responsive documents, so it may be sleazy, but it's a valid response.

That being said, the processing here as a whole was very poor form.

Lack of response is a sad fact of FOIA processing, but it still looks bad, especially considering the total lack of response in the face of several follow-up inquiries.

The office claimed several times that they would provide a fee estimate if fees were to exceed a certain threshold, but no notification was sent. Nevertheless, they put in effort far exceeding the fee agreement and notification threshold. Collection of fees is ostensibly to offset the cost of FOIA, hence the ability to close a request for lack of a fee agreement. Incurring assessible fees without a requisite fee agreement is fiscally irresponsible, as well as a waste of valuable processing time.

Not familiar with DHS FOIA policies, but 10 calendar days is an extremely short time frame, even if the letter is received immediately. The time frame had already expired by the time the response made its way through the mail.

Finally, the redacted documents don't seem to pass muster. Each redacted section is clearly marked, but no exemption s claimed. Each redacted portion should be accompanied by the applicable exemptions claimed for that specific portion. Especially when there is such a marked disparity between Exemptions 6 and 7(E).

This reflects poorly on the FOIA program as a whole. Even looked upon with a very forgiving lens, there's a lot of basic stuff they could have done, and much of it is stuff they should have done.
[ link to this | view in thread ]
Rikuo (profile), 9 Oct 2012 @ 12:39pm

Re: Re: Re:
If Bernie Madoff had moved his assets or transferred control to a third party, law enforcement would not have had control of assets that had directly been used or had been the result of the profit of, financial crimes. i.e., if the police seize a car that was used in a bank robbery or had been bought with the proceeds of a bank robbery, that's preventing the alleged criminal from using it to commit a crime and/or benefiting from it.

What did seizing the domain names accomplish? They didn't arrest the guys behind dajaz1.com et al. If the guys behind dajaz1.com et al were in fact hard-core online criminals, it would have slowed them down for at most a day or two, while they switched domains.
Also don't forget, THERE WAS NO EVIDENCE PRESENTED in the case of dajaz1.com. The operators of that site had it taken down purely on the allegation of a third party. The police aren't supposed to do that. There is supposed to be some sort of initial investigation. Let us not forget that the "investigation" into dajaz1.com had the ICE agent download 4 files, 3 of which were deliberately given to dajaz1 by the record labels, while the fourth was for an artist not signed to those labels. And yet, that ICE agent used that false evidence as a basis to shut down the site and silence speech.
[ link to this | view in thread ]
Anonymous Coward, 9 Oct 2012 @ 12:53pm

Re: Re: Re:
Well, Doug Dickmehard (that's you...why in the hell are we giving each other names anyway? Can't we just call each other fucking cowards?) shouldn't say that all that has to happen is that someone is accused then.

Do you expect there to be a full blown adversarial hearing before an accused embezzler can be arrested?

Basically you're saying that if I accuse you then you should get all of your assets taken. You didn't mention that the accusation had merit, was pursued by law enforcement, or that there had to be ANY evidence. Just that someone had to be accused.

I bet I could find as much evidence against you as they have against a lot of those redacted sites (note, that would be very little to none).
[ link to this | view in thread ]
Tunnen (profile), 9 Oct 2012 @ 1:06pm

Re: Re:
Knowing how things are going now, I'd assume they call it a "Rubber Stamp" because it was made out of metal or other non-rubber material. I'm also going to assume it is not a stamp either... =P
[ link to this | view in thread ]
Tunnen (profile), 9 Oct 2012 @ 1:08pm

Re: Re:
I'll gladly you Tuesday for a constitutional dump today. =P
[ link to this | view in thread ]
BigKeithO, 9 Oct 2012 @ 1:15pm

Re: Re: Re: Re:
The anonymous shills here on Techdirt aren't interested in false evidence or things making sense.

They're interested in cheer leading for big content and being paid for it.
[ link to this | view in thread ]
Anonymous Coward, 9 Oct 2012 @ 1:46pm

Re: Re: Re:
I think you accidentally a word.
[ link to this | view in thread ]
Anonymous Coward, 9 Oct 2012 @ 2:30pm

Re:
"We can neither confirm or deny the existance of those documents. Any classified information cannot have its existence confirmed because of possible compromisation of foreign powers, military, information gathering, anti-child pornography, business models and generally who or what we deem necessary to protect. As a rule of thumb, anything the government does is classified and whatever we want to let people see has to be controlled through a very narrow spindoctor-haven to assure positive experience for the people requesting imnformation..."

That is more or less the reality we have been living with before the internet. FOIA is a huge step foreward on terms of assuring a transparent and more "real" democracy.

That some people are abusing the system is a problem and - on the other side - the lack of ability from some of the government bodies is what is making the transition horribly painful.
I think it is important to recognise that ICE and some other bodies have always been corrupted by a lack of oversight and too big an ego!
[ link to this | view in thread ]
Lord Binky, 9 Oct 2012 @ 2:44pm

Re: Re: Re:
It's a LED-lit plastic button that has 'Rubber Stamp' written on it.
[ link to this | view in thread ]
Lord Binky, 9 Oct 2012 @ 2:46pm

Re: Re:
Awfully friendly of them to assist me in having an excellent day by ensuring I have a positive experience requesting information.
[ link to this | view in thread ]
davnel, 9 Oct 2012 @ 6:11pm

Re: Re: Re:
They're STICKERS, fer peet's sake! Probably made by 3M. I wanna get some! I'll go into a redaction frenzy on all Gummint forms.
[ link to this | view in thread ]
Anonymous Coward, 9 Oct 2012 @ 6:14pm

Re: Re: Re: Re:
maybe two
[ link to this | view in thread ]
Anonymous Coward, 9 Oct 2012 @ 6:24pm

Kinda seems extortiony asking for $1000.00 to get info from an FOIA request don't it?
[ link to this | view in thread ]
davnel, 9 Oct 2012 @ 6:28pm

Re: Re:
You're forgetting that the real threat is to the xxAA organizations who are paying big bucks for the service. I wouldn't be surprised to find the redacted data pointing to them, their minions, or their employees. That's probably why the redactions are so heavy.
[ link to this | view in thread ]
davnel, 9 Oct 2012 @ 6:33pm

Re: Re: Re:
You wanna get your mind blown, do a Google search on "document redaction services". There's a bunch of them. Third-party redactors! I'd love to see what secrets they handle daily. Wanna bet the gummint uses them regularly?
[ link to this | view in thread ]
Anonymous Coward, 9 Oct 2012 @ 6:55pm

Re: Re: Re:
Redacted material can sometimes be unredacted. Remember the TSA manual?
[ link to this | view in thread ]
Anonymous Coward, 9 Oct 2012 @ 7:20pm

Actually, I think that the FOIA doesn't trump the idea that these are currently cases either in litigation or pending appeals and other legal actions. I am not surprised that they are not disclosing information which may be used in a court of law in these cases.

Transparency doesn't mean "drop your pants and let everyone see all the time". You guys argue about due process all the time, why are you not according the plaintiff the same rights as the defendant?
[ link to this | view in thread ]
Anonymous Coward, 9 Oct 2012 @ 8:16pm

Re:
Actually, you're wrong.
[ link to this | view in thread ]
techflaws (profile), 9 Oct 2012 @ 10:17pm

Re: Re: Re: Re:
Yawn.
[ link to this | view in thread ]
Mike Masnick (profile), 10 Oct 2012 @ 1:57am

Re:
Hard to believe that a guy facing serious jail time would be stupid enough not to keep a lower profile. Whether he's right or wrong, it makes no sense for a defendant under federal indictment to raise his profile in an antagonistic way like this. Federal judges and US Attorneys operate under broad-ranging discretion. Why on earth would Swartz put him self out there like this when the same FOIA could be tendered by his lawyer or someone not facing felony charges?

Fwiw, Aaron filed the FOIA prior to being indicted.

That would be obvious if you cared about facts and not just slamming him. But, you don't.

Besides, do you really think that someone under indictment in an unrelated case loses their ability to file FOIAs? Really?
[ link to this | view in thread ]
Mike Masnick (profile), 10 Oct 2012 @ 1:59am

Re: Re: Re:
So when they moved on Bernie Madoff, they should have held a hearing before seizing his assets? Why, to afford him the opportunity to hide them or to transfer control to a third party before the hearing? That not the way the law works, nor does it make sense.

I see. So you think that the domain owners were going to "hide" their domains away?
[ link to this | view in thread ]
Anonymous Coward, 10 Oct 2012 @ 9:00am

Re: Re:
Actually, you're wrong that he's wrong. You're also right that he's wrong.

There are FOIA exemptions that would allow them to redact information due to ongoing investigations or prosecutions, or several similar circumstances.

However, none of those exemptions were claimed.
[ link to this | view in thread ]
gregorylent, 15 Jan 2013 @ 12:04pm

the american government is sick with secrecy. the toxicity of that will prove fatal. it will be a suicide.
[ link to this | view in thread ]