After Illegally Censoring Websites For Five Years On Bogus Copyright Charges, US Gov't Quietly 'Returns' Two Domains

from the look-at-that dept

Thu, Dec 3rd 2015 9:36am — Mike Masnick

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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Oblate (profile), 3 Dec 2015 @ 9:53am

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)

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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Anonymous Coward, 3 Dec 2015 @ 9:53am

Sue ICE for their entire budget
Sue them in court for their whole budget for every year that the sites were illegally obtained. Agencies like this have zero accountability and as long as they keep getting money and have no consequences for illegal actions, will continue to abuse their power. Abuse of authority is a very real threat and in fact fighting this is how this country was founded.
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Anonymous Coward, 3 Dec 2015 @ 10:05am

Re:
IT should also be considered felony interference with a business model.

But that won't happen, because ICE is the RIAA's thug-buddy.
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Anonymous Coward, 3 Dec 2015 @ 10:08am

"the fact that it's now basically returned every one of the domains who challenged the seizure really says something "

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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Anonymous Coward, 3 Dec 2015 @ 10:12am

considering the reason for seizing and holding at least one of the sites was because of the lies that the RIAA told, it is a bit worrying. that's a whole government run agency, one that is supposed to be run in order to prevent illegal happenings basically being run by a member of an organisation that produces media for enjoyment! it's not as if this organisation is of paramount importance! the population wont turn into zombies or all keel over! the country wont grind to a halt, even if someone does copy one of the media disks!
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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Anonymous Coward, 3 Dec 2015 @ 10:22am

So a government abused and ignored the laws to get its own way then expects their citizens to follow those same laws or be imprisoned for not following them, despite making themselves exempt to such things.

There is a word for such a state of rule
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Anonymous Coward, 3 Dec 2015 @ 10:42am

Why is copyright infringement investigated by the DHS?
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Anonymous Coward, 3 Dec 2015 @ 10:58am

Re:
Why is copyright infringement investigated by the DHS?
For the better discovering of printing in Corners without License!

( For those amongst the readership who don't quite catch the reference [14 Car.II, c. 33]:
WHEREAS the well-government and regulating of Printers and Printing Presses is matter of Publique care and of great concernment especially considering that by the general licentiousnes of the late times many evil disposed persons have been encouraged to print and sell heretical schismatical blasphemous seditious and treasonable Bookes Pamphlets and Papers and still doe continue such theire unlawfull and exorbitant practice to the high dishonour of Almighty God the endangering the peace of these Kingdomes and raising a disaffection to His most Excellent Majesty and His Government . . . .
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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Anonymous Coward, 3 Dec 2015 @ 11:03am

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.

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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Anonymous Coward, 3 Dec 2015 @ 11:04am

I'm not going to hold my breath for all the apologies the copyright fanboys around here should be giving out for claiming that these seizures were totes legit. I mean if they had any integrity whatsoever, they would at least acknowledge that they were at the very least badly misled.
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Anonymous Coward, 3 Dec 2015 @ 11:22am

Re: probable cause
No, they claimed they had probable cause based on the word of the the RIAA. The problem is the RIAA lied about having evidence and ICE just assumed the evidence that RIAA claimed to have would make everything legal in the end. Since there never was any evidence, there was no probable cause and ICE is now liable for the entire fiasco. It kind of makes you wonder how much truth there was in the claim that Biden ordered the Kim Dotcom fiasco again at the direction of the RIAA who has "proof" that no one will ever see.
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Anonymous Coward, 3 Dec 2015 @ 11:25am

Not a lack of understanding
...showing a near total lack of understanding of both the law and how the internet worked.

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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Anonymous Coward, 3 Dec 2015 @ 11:30am

RIAA Felony?
...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.

Umm, isn't making a false statement to a federal agent a felony? Shouldn't someone be going to prison?
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Anonymous Coward, 3 Dec 2015 @ 11:34am

Re:
LOL! The standard was "probable cause." I know you can accept reality, but that doesn't change the fact that it's true.

Probable cause of what, exactly? And think carefully before you answer, unless you don't mind looking exceedingly foolish.
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Anonymous Coward, 3 Dec 2015 @ 11:57am

Re: Re:
Probable cause of what, exactly? And think carefully before you answer, unless you don't mind looking exceedingly foolish.

No need for the silly warning. Probable cause that the property (domain names) were forfeitable.
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Anonymous Coward, 3 Dec 2015 @ 11:59am

Re: Re: probable cause
Not how it works. The question is whether the government had probable cause that the domains were forfeitable. It did at the time. The fact that the information turned out later to be untrue doesn't change the fact that there was probable cause when the forfeiture actions were filed and the property seized.
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Chronno S. Trigger (profile), 3 Dec 2015 @ 12:13pm

Re: Re: Re: probable cause
"The fact that the information turned out later to be untrue"

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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Anonymous Coward, 3 Dec 2015 @ 12:17pm

Re: Re: Re: probable cause
The question is whether the government had probable cause that the domains were forfeitable. It did at the time.

No, it didn't. And no matter how many times you repeat that lie, it won't get any truer.
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Gwiz (profile), 3 Dec 2015 @ 12:29pm

Re:
LOL! The standard was "probable cause." I know you can accept reality, but that doesn't change the fact that it's true.

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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Anonymous Coward, 3 Dec 2015 @ 12:36pm

Re:
The standard was "probable cause."
When was that the standard?

“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).
Thus, while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved.

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Anonymous Coward, 3 Dec 2015 @ 12:39pm

Re: Re: Re: Re: probable cause
If you told the cops that I stole your car, they wouldn't take my car. That makes no sense. They may arrest me (seizure), which is what happened here.
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Anonymous Coward, 3 Dec 2015 @ 12:45pm

Re: Re:
You're conflating several things. Foremost, the standard in obscenity cases doesn't apply in copyright cases. The more difficult it is to separate protected from unprotected speech, the more procedural protections are needed. Those are obscenity cases. With obscenity, it's hard to tell if it's protected. The standard is hard to apply. With regular copyright infringement, it's simple. Determining whether somebody is offering copyrighted files to download is easy.
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Anonymous Coward, 3 Dec 2015 @ 12:49pm

Re: Re:
Probable cause is the standard to effect a seizure in a civil forfeiture action. It's also the standard to arrest a person. Imagine that. Fort Wayne is an obscenity case. Easy to distinguish. Moreover, a domain name is simply an instrumentality. It's not a book.
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Anonymous Coward, 3 Dec 2015 @ 12:49pm

Re: Re: Re:
You're conflating …
You are conflating the seizure of allegedly infringing copies with the seizure of a domain which in and of itself is not an accused copie.

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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Anonymous Coward, 3 Dec 2015 @ 12:49pm

Re:
One of the standards of probable cause is a time limit. The US Supreme court ruled in County of Riverside v. McLaughlin that those arrested without a warrant are entitled to hearings within 48 hours. At said hearings, the government could either present the evidence that gives them continued cause to hold them or determine that such evidence did not exist and release them.

Reality is a bitch sometimes
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Anonymous Coward, 3 Dec 2015 @ 12:51pm

Re: Re: Re: Re:
It's an instrumentality, not contraband. Use a printing press to commit infringement? It can be seized and forfeited. It doesn't matter if you also use it for noninfringing purposes.
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Anonymous Coward, 3 Dec 2015 @ 12:55pm

Re: Re: Re: Re: Re:
Not without due process.

Due process requires more than a bare hearsay allegation.
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Anonymous Coward, 3 Dec 2015 @ 12:56pm

Re: Re:
That's a Fourth Amendment rule when there's an arrest without a warrant. The point there is that probable cause must be determined in a reasonable time AFTER the arrest. It's got nothing to do with a civil forfeiture action, where the seizure happens AFTER probable cause has been determined.
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Anonymous Coward, 3 Dec 2015 @ 12:57pm

Re: Re: Re: Re: Re: Re:
Citation needed. How do you think probable cause is determined?
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Anonymous Coward, 3 Dec 2015 @ 1:00pm

Re: Re: Re: Re: Re: Re: Re:
Citation needed.
Bantam Books v Sullivan (1963)
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Anonymous Coward, 3 Dec 2015 @ 1:03pm

Re: Re: Re: Re: Re: Re: Re: Re:
Been a while since I read that one, but I'm almost certain hearsay is not the issue. Maybe we're talking past each other. Hearsay is a term of art in evidence law. Regardless, you're pointing to obscenity cases. See my answer above about how the rules there are different since it's difficult to discern whether something is obscene.
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Anonymous Coward, 3 Dec 2015 @ 1:10pm

Re: Re: Re:
...so you're saying the standard for this is civil forfeiture, and not probable cause. Civil forfeiture operates under it's own principles that are legally distinct from probable cause.
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Anonymous Coward, 3 Dec 2015 @ 1:14pm

Re: Re: Re: Re: Re: Re: Re: Re: Re:
Maybe we're talking past each other.
Bantam Books for due process:
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.
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Gwiz (profile), 3 Dec 2015 @ 1:24pm

Re: Re: Re:
Foremost, the standard in obscenity cases doesn't apply in copyright cases.

[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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Zonker, 3 Dec 2015 @ 1:32pm

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.
That is not how our justice system is supposed to work. You are supposed to collect the evidence first, then act on it. Otherwise, I can claim that the RIAA is infringing the copyrights of all the independent artists and bloggers they shut down on the internet and order the immediate seizure of all of RIAA's assets, then leave them in limbo by ignoring their evidence requests for five years.

Oh, that's right. Laws and proper procedure only apply to us regular people.
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Gwiz (profile), 3 Dec 2015 @ 1:33pm

Re: Re: Re:
You seem to arguing strenuously in favor of the government's actions here, so let me ask you question:

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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Anonymous Coward, 3 Dec 2015 @ 1:44pm

Re: Re: Re: Re: Re: probable cause
If you told the cops that I stole your car, they wouldn't take my car. That makes no sense. They may arrest me (seizure), which is what happened here.

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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Anonymous Coward, 3 Dec 2015 @ 1:54pm

Re: Re: Re: Re: Re: Re: Re:
"Due process requires more than a bare hearsay allegation."

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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Gwiz (profile), 3 Dec 2015 @ 2:03pm

Re: Re: Re: Re:
Also, here are some extremely convincing arguments as to why these domain seizures are illegal. Karl articulates it about a million times better that I ever could:

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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Chronno S. Trigger (profile), 3 Dec 2015 @ 2:07pm

Re: Re: Re: Re: Re: probable cause
OK, going with that. You're perfectly fine with being arrested, held for 5 years (without charge) all because the police never bothered to even check if I owned the car in the first place?

That's still not how due process works.
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Blackfiredragon13 (profile), 3 Dec 2015 @ 2:30pm

Re: Sue ICE for their entire budget
At which point I expect everyone involved with or reporting on the case will "disappear" and TD and every other site having any mention of it will be "seized".
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Ben (profile), 3 Dec 2015 @ 3:53pm

Re: Sue ICE for their entire budget
IANAL, but I believe you can't sue a government (or agency) for damages without their consent (except related to specific circumstances which I suspect would not apply in these cases).

I'd go after them using RICO; their collusion with the RIAA is obviously a form of Racketeering.
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Anonymous Coward, 3 Dec 2015 @ 4:39pm

Re: Re: Re: Re: Re: Re: probable cause
I think he'd be fine with that. Not only should it apply to him, but he should have all other avenues of help and assistance cut off. Want to fund a defense? Too bad, asset forfeiture. Want to point out how you were not breaking the law? Too bad, you were obviously trying to abuse a loophole while you were actually breaking the law.

Live by the sword, etc.
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Anonymous Coward, 3 Dec 2015 @ 5:38pm

Re: RIAA Felony?
right after holder will for committing perjury as the head of the DoJ. people need to realize the laws are not being enforced equally but being heavily abused by those currently in power.
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Anonymous Coward, 3 Dec 2015 @ 7:30pm

Re: RIAA Felony?
Someone should, but we all know Whatever, antidirt and the fuckton of IP addresses they troll under would have a shitfit.
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Anonymous Coward, 4 Dec 2015 @ 6:32am

Re: Re:
"And think carefully before you answer, unless you don't mind looking exceedingly foolish."

Waaayyyyy too late.
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Whatever (profile), 4 Dec 2015 @ 6:34am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
"Any system of prior restraints"

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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Anonymous Coward, 4 Dec 2015 @ 8:44am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
They were not barred from publication …
A domain name is an expressive string.

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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That One Guy (profile), 4 Dec 2015 @ 9:32am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
By that argument shutting down a newspaper upon accusation wouldn't be prior restraint either, because the ones running it were still able to speak via other avenues, and could always start up elsewhere.

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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Anonymous Coward, 4 Dec 2015 @ 10:54am

Re: Re: Re: Re:
...so you're saying the standard for this is civil forfeiture, and not probable cause. Civil forfeiture operates under it's own principles that are legally distinct from probable cause.

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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Anonymous Coward, 4 Dec 2015 @ 10:59am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Bantam Books for due process:

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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Anonymous Coward, 4 Dec 2015 @ 11:12am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Prior restraint is First Amendment, not a due process issue under the Fifth Amendment.

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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Anonymous Coward, 4 Dec 2015 @ 11:13am

Re: Re: Re: Re: Re:
The standard to seize the instrumentality…
Labeling a thing so as to refuse to see its plain character misrepresents the law.

Any honest person equipped with sight and reading ability acknowledges that domain names are expressive.
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Anonymous Coward, 4 Dec 2015 @ 11:20am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
Regardless, the "almost immediate judicial determination" stuff matters with obscenity…
The “sensitive tools” called for in Speiser v Randall (1958) go beyond the obscenity context.

Speiser itself was not an obscenity case.
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Anonymous Coward, 4 Dec 2015 @ 11:32am

Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:
By that argument shutting down a newspaper upon accusation wouldn't be prior restraint either, because the ones running it were still able to speak via other avenues, and could always start up elsewhere.

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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Anonymous Coward, 4 Dec 2015 @ 11:47am

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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.

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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Anonymous Coward, 4 Dec 2015 @ 12:00pm

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The “sensitive tools” called for in Speiser v Randall (1958) go beyond the obscenity context.

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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Anonymous Coward, 4 Dec 2015 @ 12:37pm

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That has nothing to do with the line of cases about what procedural safeguards must be employed before seizing property to be forfeited.
Alexander v United States (1993) cites Speiser:
. . . the government must use measures that are sensitive to First Amendment concerns in its task of regulating or punishing speech. Speiser v. Randall
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Gwiz (profile), 4 Dec 2015 @ 12:53pm

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I'll ask once again, since you didn't answer the other time I asked:

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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Anonymous Coward, 4 Dec 2015 @ 1:26pm

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Yes, due process applies to the states via the 14th Amendment.
Read the 14th Amendment's due process clause:
. . . nor shall any state deprive any person of life, liberty, or property, without due process of law;
And read the 5th Amendment's due process clause:
No person shall be . . . nor be deprived of life, liberty, or property, without due process of law;

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.
“We must never forget that it is a Constitution we are expounding.”
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Gwiz (profile), 4 Dec 2015 @ 1:35pm

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Another question.

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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Anonymous Coward, 4 Dec 2015 @ 6:25pm

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Yes, probable cause is enough to arrest someone, or seize their property. They then must be brought in front of a judge within 48 hours, at which evidence to support the seizure is presented and the validity of the probable cause is determined. They are formally charged with some crime, and taken to trial within a reasonable time, as per the 6th amendment. The fact that none of these happened means that either the government blatantly ignored it's own laws, or that probable cause wasn't the basis.

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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Whatever (profile), 4 Dec 2015 @ 9:44pm

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"By that argument shutting down a newspaper upon accusation wouldn't be prior restraint either, because the ones running it were still able to speak via other avenues, and could always start up elsewhere.
"

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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That One Guy (profile), 5 Dec 2015 @ 12:26am

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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.

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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Anonymous Coward, 5 Dec 2015 @ 8:04am

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… it is actually the owner of the property who has to prove that the property was not involved in a crime.
When it comes to the contractual rights involved in the publication of DNS entries, a number of courts have demurred in accepting a characterization as “property”.

Beyond that, that placing the initial burden upon the speaker is inconsistent with Freedman v Maryland (1965)
As we said in Speiser v. Randall, "Where the transcendent value of speech is involved, due process certainly requires . . . that the State bear the burden of persuasion to show that the appellants engaged in criminal speech."
(Ellipsis in Freedman)
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Jeff L, 6 Dec 2015 @ 8:16pm

ICE , not catching illegals, but helping music industry
This is all about Free Speech. After all the gov’t (and their corporate cronies) ban books like “America Deceived III” and censor websites.
Last link:
http://www.amazon.com/America-Deceived-III-E-Blayre/dp/1517571243/
Get rid of ALL gov't agencies.
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marcus (profile), 23 Dec 2015 @ 9:49am

Why is ICE enforcing intellectual property in the first place?
I thought ICE was involved in enforcing immigration laws, not taking down web sites of suspected copyright or intellectual property violators. Something needs to be done if a website domain can be legally seized based on a claim by RIAA that a violation occurred but they are not providing ICE evidence of this violation. Like all other A$$et forfeiture laws, it violates a suspects right to due process. Since a lot of law enforcement agencies make money off of seizures they have an incentive to abuse these powers.
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