Rep. Lofgren Challenges IP Czar On Legality Of Domain Seizures

from the example-to-the-rest-of-the-world dept

A friend of the site sent over a great video of Rep. Zoe Lofgren quizzing IP Czar Victoria Espinel about the recent domain name seizures. It's clear that Lofgren has been well-briefed on the topic (which makes her one of very few elected officials). Lofgren has always been really good on copyright issues, so this isn't a huge surprise, though I wish she were more vocal on some of these issues. What's really stunning is Espinel's deer-in-headlights reaction to the multiple questions... and the fact that she didn't really address the key questions: She starts out her response with a total non sequitur about how copyright infringement is an important issue and part of her mandate. That may be true, but what Lofgren had specifically asked her was why ICE and Homeland Security are spending taxpayer dollars on a few random blogs, rather than actual criminals.

Where it gets good is when Espinel tries to claim that there was due process in the domain seizures, where Lofgren jumps back in and points out that Espinel is wrong, and that there is no due process here. Espinel pulls out the same claim we keep hearing: that a magistrate judge approved the seizures based on "probable cause," but Lofgren responds by pointing out that judges in such circumstances approve almost anything -- and highlights ICE's similar massive screwup in taking down 84,000 innocent sites -- which also happened with a magistrate judge's rubber stamped approval. Lofgren knows that that's not due process by any stretch of the imagination, and ICE and Espinel really should give up on this line of argument. What they should do is actually provide real due process. Rather than seizing domains, file a lawsuit.

Lofgren's statement in response to Espinel's "due process" claim is so good that we'll repeat it here:

With all due respect, judges sign a lot of things... For example, the FreeDNS takedown -- it wasn't a copyright enforcement, but "supposedly" a child pornography enforcement -- ICE took down 84,000 websites of small business people that have nothing to do with child pornography at all. And put up a little banner saying "this was taken down for child pornography." Really smearing them. If I were them, I'd sue the Department. These were just small businesses. They had nothing to do with anything, and yet a judge signed that. So, if that's the protection, it's no protection. I want to know, what is the Department doing to think about the affirmative defenses, to think about -- yes, there's piracy, and all of us are united that we gotta do something about piracy -- but there's also a First Amendment that you should be considering when you go and destroy a small business. Are you thinking about that?

Espinel's response is that they are thinking about this -- but it's not shown in their actions at all. Once again, there's a very simple way to handle this: have real due process that involves an actual adversarial hearing where before you shut down a website with tons of perfectly legal expression, someone points out to the clueless newbies in Homeland Security that they're not breaking the law. Why is that so difficult?

Espinel goes on to talk about how important due process and the First Amendment are to Americans -- and how what we do serves as an example to other countries. That leaves us with a pretty big question: if that's the case, why did she and ICE ignore both due process and the First Amendment with these domain seizures?

Filed Under: domains, due process, first amendment, ice, seizures, victoria espinel, zoe lofgren

Just Because A Judge Signs A Warrant, Doesn't Make It Legal...

from the just-saying dept

One of the regular "defenses" we've seen in the comments for why Homeland Security's seizures of various domains -- including ones that have substantial protected speech -- are "legal" is because a magistrate judge signed off on the affidavit filed by Homeland Security and the Justice Department. Of course, that's not necessarily true, as it appears that the magistrate judges in these cases failed to abide by the prevailing case law that requires a higher standard of proof than was provided by Homeland Security, but we'll leave that discussion for another day. A separate point is that just because a judge signs off on it, doesn't make such things legal.

As an example of this in a somewhat different context, Julian Sanchez points us to the story of a San Francisco pot bust gone wrong. In this case, the San Francisco police filed for a warrant to search 243 Diamond St. for drugs and associated proceeds for drugs. The warrant described the address as a "two-story, one-unit" building, and the officer claimed he had staked it out for two days and two nights.

It turns out that 243 Diamond is neither two stories, nor is it a one-unit building. It's three stories and two units, and the upper unit (the one raided by the SFPD) happens to be rented to a guy named Clark Freshman... who also just so happens to be a law professor. He told the SFPD and DEA agents who raided his place that they were breaking the law, and they "laughed at" him. Except Freshman may get the last laugh, as he's planning to sue the government. The article quotes another lawyer saying that in similar cases "people have sued and collected substantial settlements" and noting that "whomever is representing the government better get out his checkbook."

While not quite the same, there do seem to be a fair number of similarities with some of the domain seizures. In both cases, the affidavit filed had some very serious errors -- the types of errors that shouldn't have been made. In both cases -- especially with the mooo.com seizure -- perfectly innocent people were severely impacted by these mistakes in the process. Just because a judge rubber stamps a warrant, it doesn't automatically make that warrant legal.

Filed Under: due process, warrants

Amicus Brief Calls Into Question The Legality Of Righthaven's Entire Business Model

from the read-it-all dept

Marc Randazza was kind enough to send over the amicus brief his law firm filed on behalf of the Media Bloggers' Association in response to one of Righthaven's lawsuits. You should read the whole thing (it's embedded below). I'll repeat: you should read the whole thing. It rips apart Righthaven's entire strategy and shreds it to pieces, accusing the company of champerty among other things. Here's just a snippet:

If the Las Vegas Review-Journal (hereinafter, the "LVRJ") or its parent company, Stephens Media LLC (hereinafter, "Stephens Media"), were the plaintiffs in these cases, this argument would not apply. But Righthaven's exercise in champerty seeks to make an end-run around the rule of law limiting the right to sue for copyright infringement to creators and those legitimate enterprises that make creativity possible and protectable. Nobody can seriously believe that Righthaven, which publishes nothing anywhere, has acquired the full ownership of the articles it sues upon. The assignments it secures -- only after finding "infringed" articles to sue over -- contain mysterious (and heretofore unexamined) language about a "right of reversion" which, on frank consideration, demonstrates how transparently illegitimate these "assignments" are.

Phony "assignments" are not the only venal and manipulative aspects of the Righthaven scheme. By design, Righthaven sues mostly retirees who, terrified of losing their retirement savings, generally settle their cases quickly and without discovery. But this Court should not restrain its own duty to inquire into the underlying law and facts on which both Righthaven’s claims and Righthaven's coerced settlements are based when considering its decision on damages in this case. This Court should hold serious doubts about the propriety of Righthaven bringing these suits with rights obtained from a third party that has no stated stake in this litigation or related cases. Either the LVRJ and Stephens Media are "selling lawsuits," which is impermissible under Silvers, 402 F. 3d at 884-85, or Righthaven is simply a law firm in disguise, engaged in champerty, which is impermissible in Nevada, as it is almost everywhere legal ethics and fundamental justice are a concern of the law. Schwartz v. Eliades, 113 Nev. 586, 589 (Nev. 1997); Lum v. Stinnett, 87 Nev. 402, 408 (Nev. 1971). Without revealing exactly what exclusive rights Righthaven has acquired in the works, if acquiring any at all, Righthaven essentially buys the bare right to sue for copyright infringement -- which purchase is banned by copyright law -- and uses it to sue small website operators by the hundreds. Left unchallenged, Righthaven's practices create a secondary commodities market for copyrights, or exclusive subsidiary rights in copyrights, to be used only in suing others who may have valid defenses, but cannot afford to raise them -- or engage counsel whatsoever, as is the situation in this case. This is inimical to the purpose of the Copyright Act, which was intended to protect the intellectual investments of creators, rather than creating lawsuit mills that use registered copyrights -- only after their infringement was discovered -- as a source of income, rather than a shield against others' misappropriation. See Silvers, 402 F.3d at 886.

We've seen some of the defenses to Righthaven suits raise some of these issues, but never in such a detailed manner. And it's especially interesting in this case, where the filing comes as an amicus brief, rather than lawyers for the defendant. In fact the defendant in the case, Bill Hyatt, did not reply. As we've discussed in the past, normally when that happens, the court will make a default judgment -- basically giving the plaintiff everything requested. However, they don't have to and Randazza points out that Righthaven's claims reach far beyond reasonable. Among other things, it also challenges Righthaven's ridiculous standard demand that those sued hand over their entire domain name, noting that copyright law does not allow such a remedy.

There's also a very long and worthwhile section on why the demand for $150,000 is not just ridiculous, but goes against the law. I won't post that whole thing, but here's a snippet:

The Due Process clause of the U.S. Constitution has long been a source of limitation on all forms of damages awarded in judicial proceedings. Damages beyond those actually suffered by a plaintiff, awarded as a deterrent against similar unlawful acts in the future -- known as exemplary damages -- have been tightly limited by the courts under the Due Process clause. Pacific Mut. Life Ins. Co. v. Haslip, 499 U.S. 1, 42 (1992); State Farm Mut. Ins. Co. v. Campbell, 538 U.S. 408, 417 (2003). Because these exemplary damages may become detached from the harm actually caused to the plaintiff by defendant, these awards may fail to serve any legitimate purpose, and instead hold a "devastating potential for harm." Campbell, 538 U.S. at 417.

This due process protection is both substantive and procedural in nature. See Id. Courts analyze three figures in relation to any award of exemplary damages to determine whether any such award is grossly excessive:

1) The degree of reprehensibility of the defendant’s conduct;
2) The disparity between the actual or potential harm suffered by the plaintiff and the punitive damages award; and
3) The difference between the punitive damages awarded by the jury and the civil penalties authorized or imposed in similar cases.

Id. at 418; Cooper Indus., Inc. v. Leatherman Tool Group, Inc., 532 U.S. 424, 436 (2001); BMW of N. Am. v. Gore, 517 U.S. 559, 575 (1996). Though the Court has not yet awarded any damages in this case, the third factor, weighing the difference between awarded damages in this case and the penalties authorized in similar cases, should consider the damages sought by Righthaven in comparison to those authorized in other cases.

This analysis and scrutiny applies to the Copyright Act, just as it does to any federal law. Every act of Congress, including the enactment of the Copyright Act, is subject to due process limitations on account of the Fifth Amendment’s limits on Congress’ power. Nebbia v. N.Y., 291 U.S. 502, 510 (1934). These statutory damages allow by the Copyright Act serve the same purpose as punitive damages awarded by a jury (to punish and deter unlawful conduct) and therefore require the same level of constitutional scrutiny.

The argument here is quite interesting, since we're likely to see similar arguments made in the Jammie Thomas and Joel Tenenbaum appeals on the constitutionality of the damages awards.

Filed Under: business model, champerty, copyright, due process
Companies: righthaven

ICE Finally Admits It Totally Screwed Up; Next Time, Perhaps It'll Try Due Process

from the just-a-tip dept

While the folks at Homeland Security refused to even admit that they had totally screwed up and seized a domain with 84,000 (mostly legal) websites last week, apparently someone at Homeland Security finally realized that the press wasn't going to keep accepting them refusing to answer questions about it. So, it's finally come clean and admitted they seized all of mooo.com, despite the vast majority of it being legal.

I would think that mooo.com's operator has an incredibly strong legal case against Homeland Security if he decides to bring it.

That said, Homeland Security's statement on the matter is pretty (unintentionally) funny in that it doesn't seem to apologize for this blatant First Amendment violation, nor the lack of due process, but does say that authorities are "reviewing" what happened to avoid future mistakes. Oh really? Here's a simple suggestion:

Try some due process.

It's pretty simple, really. If, rather than just seizing domains with absolutely no notice whatsoever, Homeland Security and the kids at ICE actually had to file a lawsuit and allow for an adversarial hearing before the domain got seized, then somewhere in the process before 84,000 voices got shut up by the US government, someone might have pointed out that most of the content on mooo.com was perfectly legal, and Homeland Security could have focused on the few users who were breaking the law. But, you know, that would involve actually obeying the law, and that seems like way too much for Homeland Security these days.

Filed Under: domain seizures, due process, first amendment, homeland security, ice, mistakes, mooo.com, prior restraint

Homeland Security Seizes Another 18 Domain Names, With No Adversarial Hearings Or Due Process

from the can't-stop-now dept

As a bunch of the proprietors of domain names seized in earlier questionable domain seizures are preparing to fight back against the seizures, Homeland Security can't resist seizing more domain names. This time, it looks like the seizures were more focused on sites selling counterfeit physical goods, and the seizures were purposely timed to Valentine's Day. Going after sites that sell counterfeit goods makes a lot more sense than some of the other sites that were seized in the past, but there still are serious questions about the legality of such a seizure prior to any adversarial hearing, and with no attempt to even communicate with the site operators. I don't know if this is the case or not, but how does ICE know that these sites did not believe they were selling legitimate products? What's wrong with going through an adversarial hearing in which the site's operators are allowed to defend themselves? If they're really breaking the law, let that be determined at a trial. At the very least, considering the widespread questions about the legality of these seizures, wouldn't it make sense for Homeland Security and ICE to wait until the legality of such seizures is reviewed by a court?

Filed Under: domains, due process, homeland security, ice, seizures

EFF Finds Evidence Of Over 40,000 Intelligence Violations By The FBI Since 9/11

from the yes,-40,000 dept

We've pointed out, multiple times, how the FBI has been caught abusing the Patriot Act with things like using National Security Letters to get information it had no legal right to obtain. Even worse, when President Obama issued a blanket absolution for the FBI breaking the law it seemed like no one batted an eye. In fact, you may not have even heard about it, because the press just didn't think that breaking the law to spy on Americans is really that big of a deal.

So, once again, it seems unlikely that this story will get much attention, but the EFF has, via a series of Freedom of Information Act requests, determined that the FBI may have committed over 40,000 intelligence violations since 9/11, 2001.

Yes: 40,000.

On top of that, the research uncovered evidence of the FBI "lying in declarations to courts, using improper evidence to obtain grand jury subpoenas, and accessing password-protected files without a warrant." And yet, why aren't we hearing much about this? Why aren't there stories everywhere covering this massive abuse by the government? Instead, we just get Congress rubber stamping a renewal of the Patriot Act, without even taking into consideration what's happening.

Filed Under: abuse of power, due process, fbi, patriot act, privacy, warrants

The Companies Who Support Censoring The Internet

from the censorship-is-good-for-business dept

A group of companies sent a letter to to Attorney General Eric Holder and ICE boss John Morton today (with cc's to VP Joe Biden, Homeland Security boss Janet Napolitano, IP Czar Victoria Espinel, Rep. Lamar Smith, Rep. John Conyers, Senator Patrick Leahy and Senator Charles Grassley), supporting the continued seizure of domain names they don't like, as well as the new COICA censorship bill, despite the serious Constitutional questions raised about how such seizures violate due process and free speech principles. While many reporting on this letter refused to actually post a copy of the full letter, kudos to Greg Sandoval over at News.com for doing so (full text also included after the jump on this post).

The companies try to present a united front that censoring the internet is a good thing. It includes the usual suspects of Viacom and NBC Universal on the content side and Louis Vuitton and Tiffany on the counterfeiting side, but there are a few other interesting names: such as Monster Cable (never met an IP law it didn't want to abuse, apparently), the NBA, MLB and NFL (sports leagues unite in censorship!) as well as Voltage Pictures, famous for suing thousands of fans for downloading Hurt Locker. Activison, which has become increasingly aggressive on IP issues lately is on the list as well, of course. Anyway, here's the full list of companies that support censoring the internet, because they're too lazy to compete in the marketplace or innovate when that market changes:

• Nike - Beaverton, OR
• Achushnet - Fairhaven, MA
• Curb Music Publishing - Nashville, TN
• NBC Universal - New York, NY
• Viacom - New York, NY
• Callaway - Carlsbad, CA
• Cleveland Golf - Huntington Beach, CA
• Rosetta Stone - Arlington, VA
• Activision - Santa Monica, CA
• Adidas Group - Portland, OR
• Xerox - Norwalk, CT
• Hastings Entertainment, Inc. - Amarillo, TX
• Fortune Brands - Deerfield, IL
• Coty Inc. - New York, NY
• EDGE Entertainment Distribution - Streetsboro, OH
• Oakley, Inc. - Foothill Ranch, CA
• PING - Phoenix, AZ
• Louis Vuitton - New York, NY
• D'Addario and Company - Farmingdale, NY
• Monster Cable Products, Inc. - Brisbane, CA
• Tiffany and Co. - New York, NY
• Farouk Systems, Inc. - Houston, TX
• Beam Global - Deerfield, IL
• Chanel USA - New York, NY
• True Religion Apparel, Inc. - Vernon, CA
• Concord Music Group - Beverly Hills, CA
• Village Roadshow Pictures - Beverly Hills, CA
• National Basketball Association - New York, NY
• National Football League - New York, NY
• The Collegiate Licensing Company/IMG College - Atlanta, GA
• Anderson Merchandisers - Amarillo, TX
• Trans World Entertainment Corporation - Albany, NY
• Timberland - Stratham, NH
• Major League Baseball - New York, NY
• Lightening Entertainment/Mainline Releasing - Santa Monica, CA
• Sierra Pictures - Beverly Hills, CA
• Voltage Pictures LLC - Los Angeles, CA
• Worldwide Film Entertainment LLC - Westchester, CA
• Nu Image, Inc. - Los Angeles, CA
• Burberry Limited - New York, NY
• Big Machine Records - Nashville, TN
• The Little Film Company - Studio City, CA
• Columbia Sportswear Company - Portland, OR

These companies are clearly trying to protect their own business interests, but it seems reasonable to let them know that you don't appreciate them seeking to censor the internet. If you haven't been following this story, and want to understand the details, we've discussed why COICA is all about censoring websites without due process and in violation of the First Amendment. We've also discussed how the ongoing (pre-COICA) domain name seizures were riddled with serious errors that appear to violate the law as well, including seizing the domains of blogs regularly used and recognized within the music industry based on evidence involving songs sent by the record labels themselves.

And, of course, none of this is to say that violating copyright or trademark laws should be allowed. But we have a system to deal with such things: you file a lawsuit, you have an adversarial hearing in a courtroom (i.e., due process) and you let both sides present their case. COICA and these domain seizures look to avoid all of that. And that's a big, big problem. That these companies would support such censorship and leapfrogging over due process suggests that they're companies not worth doing business with.

Filed Under: censorship, due process
Companies: activision, louis vuitton, monster cable, nbc universal, nike, tiffany, viacom

US Is Apparently Torturing Bradley Manning, Despite No Trial And No Conviction

from the this-is-not-the-america-we-were-told-about dept

While there's been a ton of attention paid to Julian Assange's arrest and situation, much less attention has been paid to Bradley Manning, the Army Private who has been accused of being the source of many of Wikileaks' more recent leaks concerning the US government and military. It seemed like a reasonable question to ask, upon his arrest, whether or not he was simply whistleblowing or breaking the law. Certainly this is a question that is open for debate. What is pretty clear is that his intentions were absolutely to be a whistleblower.

In his internet chat with Adrian Lamo (the guy who turned him in), Manning made it clear that if he was trying to cause problems for the US or had malicious intentions, he could have sold the info to foreign governments. However, his reasoning for leaking the info was clear, saying he was hoping it would cause "worldwide discussion, debates and reform." He also noted that he was driven to do this after being involved in detaining Iraqis who had simply done a scholarly critique of the current government, which he believed went against basic free speech principles. Again, no matter what you believe about his specific actions, it's pretty clear his intent was to whistleblow. He was upset about what he felt were illegal activities and his goal was to get that information out and to create discussion leading to reform. That's the classic definition of whistleblowing.

I knew Manning had been arrested and was being held somewhere, but Glenn Greenwald is now covering how he is being tortured, despite the fact he has not been tried. He has been held in intensive solitary confinement, meaning he spends 23 hours of the day in total isolation. He has not even been given a pillow or sheets for his bed. As Greenwald highlights, there is widespread agreement that such prolonged solitary confinement is well beyond the standard level of torture, is forbidden in many modern civilizations, and leads to long term psychological issues for those who go through it.

And all this for a guy who has not even been convicted of anything.

Again: I recognize that some people believe that Manning is a "traitor" or some sort of "enemy." But even if that's the case, why should he not be put on trial for it, before he's put into solitary confinement? As Greenwald notes, "Manning has been a model detainee, without any episodes of violence or disciplinary problems." Solitary confinement is normally used as punishment for such outbreaks for those already convicted. Putting Manning in such conditions is a purely punitive attempt to torture him, without him even being convicted.

We've already covered just how bad the Defense Department is at protecting whistleblowers, but this goes way beyond any of that. The message being sent here is that, even if your intentions are to expose wrongdoing, the military may lock you up and torture you for months without end and with no due process. This is not what America is supposed to be about. We're not supposed to support torture. We're not supposed to ignore due process. We're supposed to encourage whistleblowing. Instead, we're locking it up and torturing it with no trial or conviction.

This is, frankly, horrifying.

I'm not convinced that Manning did the right thing in leaking all of those documents. Rather, I think there's a compelling argument that he went way too far in releasing way too much. But it's a point that can be debated. However, Manning has no such opportunity to debate it. Instead, he's being psychologically tortured with no method of even making his own case.

Filed Under: bradley manning, due process, solitary confinement, torture, whistleblowing, wikileaks
Companies: wikileaks

As The Feds Seize Domains, More Attention Paid To How Law Enforcement Regularly Abuses Asset Seizures

from the this-is-not-due-process dept

Given our serious concerns over the legality of Homeland Security's domain name seizures, one thing we keep hearing from supporters of the effort is that asset seizures are "nothing new" and happen all of the time. We've already discussed how that's not exactly true -- and how pre-trial seizures are supposed to be focused on situations where evidence might get destroyed. But it's even worse than that. It appears that law enforcement has a long, and rather dubious, history of greatly abusing the ability to seize property for their own benefit.

Ryan Radia pointed us to a detailed report from earlier this year, written by the Institute for Justice, about how the civil asset forfeiture process is regularly abused by police (pdf). And along those lines, Radley Balko has a disturbing story out of Indiana concerning massive abuses of the asset forfeiture process. Basically, law enforcement in Indiana had been abusing the forfeiture rules for their own benefit. As Balko noted in an earlier article, the "forfeiture racket" is basically a "license to steal", as law enforcement can find all sorts of reasons to seize private assets -- even without trying their owners for any crime -- and then profiting off the sale of those items.

In Indiana, the law had been changed so that, officially, any proceeds from forfeiture would go to the state's public schools, rather than directly to law enforcement. However, as Balko reports, Indiana prosecutors have found loopholes, which they regularly exploit to get around the rules:

One popular way Indiana prosecutors have avoided contributing to the school fund is to contract out civil forfeiture cases to private attorneys, who get to keep a quarter to a third of what they win in court. If there are incentive problems with letting police departments and district attorneys' offices keep forfeiture proceeds, those problems are magnified several times by allowing private attorneys to get paid directly from the forfeiture cases they bring on behalf of local governments. Forfeiture experts I've spoken with say the practice almost certainly violates the Constitution's Due Process Clause, since the people making decisions about these cases get a direct financial benefit from those decisions.

Note that, in some ways, this mimics what Homeland Security did with the domain name seizures. As we noted, Homeland Security actually contracted out to a private company to handle the domain name seizures. It's not clear, however, if they directly benefit from each seizure but this does seem like a serious question.

Another loophole in the law allows prosecutors to deduct from forfeiture proceeds the law enforcement costs associated with obtaining them. County prosecutors and police departments exploit this provision by wildly exaggerating the costs of their investigations or interpreting the law in ridiculously broad ways. The Star reported, for example, that officials in Marion County "have a broader--and more lucrative--interpretation of law enforcement costs. They argue that the phrase simply means the cost of enforcing the law in Marion County, and thereby justify holding on to every dollar of the nearly $1.6 million the county received from state forfeiture cases in 2009."

I'm curious if those supporting the whole forfeiture concept as being "perfectly normal" care to comment on these sorts of things...

Filed Under: civil forfeiture, due process, seizures

Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry

from the your-taxpayer-money-at-work dept

We've been quite concerned about the legality of Homeland Security's domain name seizures -- especially in cases where they took down sites that had a ton of legitimate content, such as various hip hop blogs, with no due process and no adversarial hearings. One other concern was where Homeland Security's direction on this was coming from. As we noted, in an earlier similar domain name seizure situation, Homeland Security announced the seizures from Disney's headquarters -- which should raise lots of eyebrows. As we said at the time, imagine any other government agency announcing a third party action that benefits a particular company from that company's offices. For example, imagine the FTC announcing antitrust actions against Google from Microsoft's offices. Wouldn't people question the legitimacy of that?

Well, apparently, Homeland Security and the folks in its Immigration & Customs Enforcement (ICE) group have no qualms at all about being quite upfront and frank about both the fact that they're acting as Hollywood's private police force and that they have little concern for due process. Entertainment Weekly spoke with Erik Barnett, the "assistant deputy director" for ICE, and he readily admitted that they were taking orders from the industry:

"In general, what we can say is, there are specific complaints from rights holders that these sites were infringing on copyrights."

That alone should give you pause. Rights holders have a long and very detailed history of greatly over-exaggerating when their rights were supposedly being "infringed" upon. Remember Jack Valenti of the MPAA claiming that the VCR was the Boston Strangler to the movie industry? Why didn't Customs "swoop in" and block all VCRs from being sold? Why? Because that would be ridiculous. So why is it effectively doing the exact same thing here?

As for due process, Barnett apparently doesn't care, and pretends that due process is basically ICE says you're guilty, so you are:

"I mean, when we're conducting criminal investigations, we don't notify criminals that you need to abate your criminal conduct or there's going to be an enforcement action against you," says Barnett. He is not particularly sympathetic to bloggers who might feel that the shutdowns have damaged their livelihoods without due process. "I understand that this is a question that gets raised," he says. "But from a law enforcement agency standpoint, there's criminal activity. The process that's set up to address that is a law enforcement agency investigates, which is what Homeland Security Investigations does. The Justice Department determines if the elements of the criminal statute have been met. And then a judge determines if the enforcement action that's proposed -- in this case, a seizure warrant -- is appropriate. So that's the process.”

Notice he never mentions an actual trial where the other side gets to put forth its arguments. Of course, for those of us who actually understand due process -- as opposed to just Barnett's cowboy process, we understand that normally you have an adversarial hearing where the other side gets to present its case before summarily being declared guilty. If there's "criminal activity" (and even that's questionable -- as it's difficult to see how what these blogs did goes beyond civil infringement, if it really was infringing at all), then you arrest them and put them on trial. You don't just seize the domains.

Barnett also claims that this is no different than Customs seizing shipments of counterfeit goods as they enter the US, but that's a huge stretch. Customs' job is to guard what crosses the borders. That's it. Seizing entire domain names because there may be some infringing material on the site (which, again, was never established at a trial) has absolutely nothing to do with protecting the borders. And the very fact that Barnett's already admitted to relying on the industry's say so that these things are infringing is downright scary. Why are our tax dollars being used to protect legacy entertainment industry companies that refuse to adapt?

Filed Under: customs, due process, homeland security, ice, police force