After Illegally Censoring Websites For Five Years On Bogus Copyright Charges, US Gov't Quietly 'Returns' Two Domains
from the look-at-that dept
One of the craziest stories of outright censorship by the US government isn't getting any attention at all. Five years ago, ICE -- Immigrations and Customs Enforcement -- a part of the Department of Homeland Security, illegally seized a group of domain names, claiming that they were violating copyright law. As we noted soon after this, the affidavit that ICE used to get a court to sign off on the seizures was particularly ridiculous, showing a near total lack of understanding of both the law and how the internet worked.The owner of one of the domains, Waleed Gad El Kareem, announced quickly that he was going to fight the seizure -- and he did. Of course, you might not have heard much about it because Homeland Security and ICE basically ignored his legal effort to contest the seizure... until just a few days ago when the domain was "returned" (more on that in a bit). You may also recall that ICE defended these seizures by stating that "no one" had challenged any of the seizures. We called bullshit on this, noting that the owners of five of the seized domains had, in fact, challenged the seizures. Four years ago, we wrote about how the government sheepishly returned Dajaz1, a hip hop music blog, that it had seized and censored for over a year. That story was fairly crazy, as it only did so after Dajaz1 filed a claim demanding the return of the site. The Justice Department secretly (without even telling Dajaz1's lawyer) kept delaying the required response to such a demand, until finally giving up and giving back the domain. It was later revealed that the "reason" ICE secretly delayed returning the domain was that it kept asking the RIAA for the evidence that Dajaz1 had violated the law (as an RIAA rep had initially sworn to an ICE agent), but the RIAA never provided anything.
The following summer, the government returned two more domains. In that case, the company that owned the domains rojadirecta.org and rojadirecta.com, Puerto 80, had actually taken a different path than the others. It flat out sued the government. The government then turned around and initiated a separate legal process to permanently "forfeit" the domains, leading to a bizarre series of filings -- and then, magically, the government just gave up and handed the domains back.
As we noted at the time, that still left a couple of other domains, including torrent-finder.com and onsmash.com. This was all the way back in Decmeber of 2011 -- four years ago -- when we noted both were unaccounted for. Over those four years, I've periodically checked in with the lawyers for both sites, and basically kept getting told there was no update at all, and that they had tried to talk ICE into returning the domains, but ICE basically stopped returning their calls. From what I can gather, neither of the operators of those sites wanted to take the route of Dajaz1 or Rojadirecta, which involved actually going to court, as that's an expensive proposition.
But, it appears that last week, five years after the government just seized those domains, they were supposedly turned back over to the owners.
Well, sort of. Having spoken to Waleed about torrent-finder.com, he told me that ICE had promised to renew the domains when payment ran out -- but it did not do so. Waleed actually feared that might be an issue, and had to re-grab the "expired" domain out of exemption, after ICE released its hold on it. I have not yet been able to confirm what happened with OnSmash.com, but we've been told that ICE similarly released its hold on that domain the same day as it released Torrent-finder.
Still, think about this for a second: The US government illegally seized and censored, on no legal basis a series of websites for five whole years. Dajaz1 and OnSmash were blogs -- so it was akin to seizing the printing presses of magazines (clear prior restraint that is unconstitutional). Torrent-finder is a search engine, like Google or Bing, but specialized in torrent files. Yes, many torrent files may link to infringing content, but many do not, and a search engine should never be completely seized, without any real due process, just because it finds content that may break the law.
This is a complete travesty, and the US government completely got away with it too, because the websites it seized were generally held by individuals without much money, or not even in the US (as is the case with Waleed). I've filed a FOIA request with ICE to try to find out more information on this, but considering all of the grandstanding ICE did when it seized these websites, the fact that it's now basically returned every one of the domains who challenged the seizure really says something -- and it's not good for ICE. Hell, check out this ridiculous MSNBC "investigation" that quotes the ICE guy in charge of these efforts, William Ross, saying completely nonsensical things, like: "We're protecting them from other people taking their ideas and selling them." How do you sell someone else's ideas? Also, none of these sites involved selling anything.
Ross is also quoted in the piece saying: "We keep going after them, no matter how many times they come back up." And yet now ICE has admitted that Ross not only totally fucked up in stealing these domains from their legitimate owners, it then illegally held them for five years. You'd think that, at the very least, Ross and the US government owe Waleed and the others an apology. But I wouldn't expect that any time soon.
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Filed Under: asset forfeiture, copyright, dhs, domains, ice, seizing domains, waleed gad el kareem, william ross
Companies: onsmash, torrent-finder
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So the RIAA and ICE worked together to deceive and deprive the rightful owners of their websites. From a legal perspective is this collusion? Is there any minimum amount of evidence that ICE needs to confiscate whatever they want?
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But that won't happen, because ICE is the RIAA's thug-buddy.
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Sue ICE for their entire budget
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Re: Sue ICE for their entire budget
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Re: Sue ICE for their entire budget
I'd go after them using RICO; their collusion with the RIAA is obviously a form of Racketeering.
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And i bet that not one cent was paid to the domain owner of the website in compensation for any loss whatsoever.
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it's about time that there were some serious changes in the USA and elsewhere that took these industries down to the level they should be at, relying on the people, not the other way round, dictating to governments that then persecute the public on the industries behalf!!!!
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There is a word for such a state of rule
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( For those amongst the readership who don't quite catch the reference [14 Car.II, c. 33]: Although, I do suppose that no joke is quite comedic if one must explain it to the audience.
Um, I'll come in again. )
For the better discovering of printing in Corners without License!
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LOL! The standard was "probable cause." I know you can accept reality, but that doesn't change the fact that it's true.
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Re: probable cause
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It didn't turn out to be untrue, it turned out to be non-existent. It would be like me claiming you stole my car, the police taking your car (keeping it for 5 years), and then it turns out that they never even bothered to ask for the paperwork showing I owned the car.
That's not how probable cause works.
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More like if someone told the cops that you stole their car and had it in your house's garage. And the cops then proceeded to seize your house without checking to see if the car was in there or had even been stolen at all.
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That's still not how due process works.
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Live by the sword, etc.
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No, it didn't. And no matter how many times you repeat that lie, it won't get any truer.
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Probable cause of what, exactly? And think carefully before you answer, unless you don't mind looking exceedingly foolish.
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No need for the silly warning. Probable cause that the property (domain names) were forfeitable.
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Waaayyyyy too late.
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Except that Marcus v. Search Warrant, 367 U.S. 717 (1961) says that the standard for seizing items protected by the First Amendment is higher than just "probable cause" and Quantity of Books v. Kansas, 378 U.S. 205 (1964) says that an adversarial hearing must happen prior to seizing protected speech otherwise the seizure is considered prior restraint and unconstitutional.
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When a complainant points to a allegedly contraband item, there is no general warrant to seize everything remotely connected. That is an unconstitutionally overbroad seizure on its face.
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Due process requires more than a bare hearsay allegation.
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On the framer's understanding of the Fourth Amendment and Fifth Amendments, for the moment, I'll just give a general reference to Thomas Y. Davies's work.
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The problem with that argument is pretty simple: The defendant(s) were free to continue their speech. They were not barred from publication nor where they locked away in a manner that they could not express themselves. The location of the commercial infringment was the domains, and thus subject to being shut down in the same manner the 800 number of someone selling counterfeit goods might be.
A domain is not a printing press or a radio transmitter. It is but a single method among methods to reach a webserver.
Remember the definition of Prior Restraint:
Prior restraint (also referred to as prior censorship or pre-publication censorship) is censorship imposed, usually by a government, on expression before the expression actually takes place.
Shutting down a domain does not stop future speech. It stops PAST speech, which is the intent of legal action against the website. They were not stopping their future infringement, but rather a reported and alledged current infringement. The site owners were more than able to spend (what was at the time) another $1.99 to get a new domain and continue their speech. They could also have continued their speed without a domain using only an IP address, or any number of free hosting options that exist.
Shutting down a particular phone number is not prior restraint. Shutting down a domain name isn't any different.
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We're not discussing this at 555-1212, we're discussing this at Techdirt.
The name under which an author publishes his work is part of that expression.
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Your comparing a domain name/site to a phone number makes absolutely no sense, given a phone number contains no speech, while a site absolutely does. If anything a site could more accurately be compared to your other example, that of a printing press, as both allow the 'speaker' to spread their speech for others to 'listen' to, and if you can't just seize a printing press and bar someone from using it to 'speak' on nothing more than accusation, then you shouldn't be able to do the same to a site.
The government doesn't have to completely bar someone's ability to speak or communicate for it to be prior restraint, it is entirely possible to just shut down one avenue of speech and still count as prior restraint.
Shutting down a domain does not stop future speech.
Completely and utterly wrong. For that to be true, the former owners of the site in question would have had to have been able to continue to post on the site in question, which was clearly not the case. Seizing the site silenced both past and future speech, by eliminating an avenue of speech.
It doesn't matter is they had other options, as if you set the bar that high, then barring killing someone there's always some way they could communicate(Forbid someone from posting online, they write. Forbid them from writing, they can speak. Forbid them from speaking, they can lean sign language, and so on), making it effectively impossible for prior restraint to ever kick in.
Prior restraint doesn't require that all avenues of communication be impeded or prohibited to kick in, just one, and a seized site can absolutely be that one.
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By Whatever's illogic, even cutting their tongues out wouldn't be prior restraint. After all, there are other ways to communicate!
Whenever someone promotes such beliefs, they richly deserve to have them applied to themselves.
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"
Not at all. You make the mistake of confusing a street sign or front door address sign with a printing press. The domain is not a publishing device any more than a phone number is - or for that matter, the sign that indicates what street you are on. They are indicators to locate a computer, not the computer. They are signs to find where the printing press is, not the printing press.
While the bar for prior restraint is quite low, it does not stop or limit government seizures of evidence or for them to shut down an operation charged with doing something illegally with creating prior restraint. You have to be very careful in the logic.
"It doesn't matter is they had other options, as if you set the bar that high"
A domain name is not a high bar. It is in fact one of the lowest. If prior restraint was a valid argument, Spamford Wallace would still have all of his original domains. An ISP shutting off a domain for non-payment or RBL blocking your domains for spamming isn't prior restraint. The government filtering spam isn't prior restraint... there are lots of ways that things can be stopped without it being absolute prior restraint.
"Forbid them from speaking, they can lean sign language, and so on), making it effectively impossible for prior restraint to ever kick in. "
No. See, if the government seized the computers and all backup copies, blocked their access to any computer and made it impossible for them to continue the speech, you may have a case for prior restraint. The government siezed a roadsign that pointed to a server, nothing more. The server could still be accessed by IP, and could have been accessed by other domain names owned. The information was not stopped nor was it taken.
Your judgement of prior restaint basically means you could never seize anything as evidence or shut down a retail location in any manner before there is a full court case, a judgemnt, the appeal, the appeal of the appeal, and the appeal all the way to the surpreme court. Then maybe, just maybe, they might be able to shut down the business. Until then, you seem to feel they should be able to continue to break the law (alleged) without any concern. That doesn't seem to be in the public's interest.
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If it was really that simple, then the government wouldn't have bothered. If seizing the domain name wasn't going to have a real effect on the site itself, then they wouldn't have done so, as it would have been a waste of time. Yet they did, showing that they knew full well that the act would affect what was on the site.
In fact their actions supports this idea(well, either that or exposes their colossal ignorance). If the domain name is just a 'sign' and is not linked, significantly to the content of the site, what copyright infringement was it guilty of? The goal from the start was to block and suppress the content of the sites, seizing the domains was just the method.
Your judgement of prior restaint basically means you could never seize anything as evidence or shut down a retail location in any manner before there is a full court case, a judgemnt, the appeal, the appeal of the appeal, and the appeal all the way to the surpreme court.
Nice strwawman, but no. If speech is going to be impacted, as was the case here, there needs to be an adversarial case before it's silenced, it needs to be open to both parties to examine the evidence and challenge any of it, and it needs to be done in a restricted manner such that the absolute minimum of speech is affected.
None of that took place in any of the cases listed in the article. The government seized the sites on accusation alone, stonewalled any attempts to challenge or even discuss the matter for years in some cases, and either dropped the case when it looked like they'd have to back up their claims in court, or tried to just pretend it had never happened and let the domain names lapse.
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Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity. [Citations] We have tolerated such a system only where it operated under judicial superintendence and assured an almost immediate judicial determination of the validity of the restraint. [Citation]
On the framer's understanding of the Fourth Amendment and Fifth Amendments, for the moment, I'll just give a general reference to Thomas Y. Davies's work.
Prior restraint is First Amendment, not a due process issue under the Fifth Amendment. Regardless, the "almost immediate judicial determination" stuff matters with obscenity, and the reason is because it's hard to tell whether something is obscene. Relying on gov't agents of the Executive Branch threatens to make such delicate determinations risks effecting a prior restraint. Not the case with copyright infringement. You can find no case law whatsoever using that standard with regular infringement (copying whole work). There's a case or two with fair use. Wbhy? Because fair use is hard to determine, and there's risk of effecting prior restraint. Not so with regular infringement (think Pirate Bay). Moreover, the JUDGE already determined that there was probable cause before these domain names were seized.
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Q: Why are the states prohibited from prior restraints, such as the statutory scheme Minnesota attempted in Near?
Hint, hint… try the due process clause of the Fourteenth Amendment.
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Hint, hint… try the due process clause of the Fourteenth Amendment.
You missed the point. Yes, due process applies to the states via the 14th Amendment. But PRIOR RESTRAINT, which is what we're talking about, is a First Amendment issue. The First Amendment applies to the states (also under the 14th Amendment and incorporation doctrine), but the seizures here were BY THE FEDERAL GOV'T. The issue is the First Amendment as it applies to the federal gov't. Not the First Amendment as applied to the states, and not due process. The claim here is that the federal gov't's seizing of a domain name is a prior restraint that violates the First Amendment
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Just as the First Amendment must be read together with the Fourteenth Amendment when we consider acts of the states, so also must the First Amendment be read together with the Fifth Amendment when we consider acts of the federal government.
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Speiser itself was not an obscenity case.
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Speiser itself was not an obscenity case.
I see "First Amendment" mentioned once in that case, and the case is about veterans being required to state an oath before receiving certain benefits. That has nothing to do with the line of cases about what procedural safeguards must be employed before seizing property to be forfeited. You're all over the place with this stuff. The obscenity cases being cited by Mike and friends are ones that point to the procedures that must be in place before speech can be seized. Those cases are obscenity, and more safeguards are needed since it's hard to tell if speech is obscene.
The conflation by Mike and friends is this: There is no doubt that speech protected on the websites at issue was protected. Even if each website had message boards, containing millions of examples of protected speech, the issue still remains whether the domain name itself is property that can be seized and forfeited. The answer is yes. And the protected speech that undoubtedly exists on those sites changes nothing. It's the unprotected speech--the obvious copyright infringement of which there is probable cause--that means nothing more than probable cause is needed.
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If these domain seizures can withstand the First Amendment scrutiny, as you are arguing, then why has the government dropped every single one of these cases involving copyright infringement so far and quietly return the domain names?
Also, why did ICE stop the practice of seizing domain names connected with copyright infringement, but still continued to seize domain names connected to counterfeit goods?
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Why shouldn't the procedures for domain name seizure include an adversarial hearing prior seizing the domain name? A domain name cannot flee or be destroyed. The government informs the operator of the hearing and if the operator really is a bad actor, the chances of them showing up are next to nil and the domain get seized ex parte anyways.
This simple procedure change would alleviate the government from First Amendment scrutiny altogether and the results would most likely be the same, except that the truly innocent would have a chance to defend themselves.
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Your response
"Citation needed."
Are you arguing that me merely claiming that you are a murderer is enough evidence to be considered probable cause? Is that what your argument boils down to?
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[citation needed]
It's my understanding that it's a standard for any case involving protected speech, not just obscenity cases.
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“Probable cause” in the latter half of the eighteenth century was understood against the then-settled background princple that, “Hearsay is no evidence.”
The law is otherwise today, no doubt.
But then, if “probable cause” has been repeatedly watered-down in the last two centuries, some here may also remember the principle of Fort Wayne Books v Indiana (1989).
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Why do you think the government dropped all of these case if, as you claim, the domain seizures could withstand First Amendment scrutiny without any problems?
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https://www.techdirt.com/articles/20110215/22214113120/once-again-why-homeland-securitys-domai n-name-seizures-are-almost-certainly-not-legal.shtml
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Reality is a bitch sometimes
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The standard to seize the instrumentality is "probable cause." (That same standard is enough to arrest, i.e., seize, a person for a crime, so it's not too surprising it works for people's property too.) The standard in a civil forfeiture action is "preponderance of the evidence." The plaintiff, here the gov't, has to prove that it's more likely than not that the property is forfeitable. These domain names were only seized. Not forfeited.
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Any honest person equipped with sight and reading ability acknowledges that domain names are expressive.
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On the other hand, you are correct that the standard in civil forfeiture is "preponderance of the evidence," but it is actually the owner of the property who has to prove that the property was not involved in a crime. The government has to do nothing at all after the initial seizure unless and until the owner of the property takes them to court. And the initial seizure is not performed under probable cause, since that would then legally place the owner as the suspect, rather than the property, leading to the first scenario.
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Beyond that, that placing the initial burden upon the speaker is inconsistent with Freedman v Maryland (1965) (Ellipsis in Freedman)
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Not a lack of understanding
Not a lack of understanding at all. Rather a near total denial of the law. Why worry about the real law when you can just make it up?
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RIAA Felony?
Umm, isn't making a false statement to a federal agent a felony? Shouldn't someone be going to prison?
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Re: RIAA Felony?
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Re: RIAA Felony?
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Oh, that's right. Laws and proper procedure only apply to us regular people.
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ICE , not catching illegals, but helping music industry
Last link:
http://www.amazon.com/America-Deceived-III-E-Blayre/dp/1517571243/
Get rid of ALL gov't agencies.
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Why is ICE enforcing intellectual property in the first place?
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