MPAA Directly Lobbies Law Enforcement To Be Its Own Private Police Force

from the and-that's-what-you-get dept

For years, we've discussed how questionable it is that federal law enforcement, including the Justice Department and Homeland Security, often acts as the private police force of the entertainment industry. At times there's been a bit of a revolving door, with the RIAA/MPAA hiring former federal law enforcement officials to head up their "anti-piracy" efforts, and the existing federal groups sometimes seem to return the favor by taking on cases that clearly should be civil matters between the private companies in the entertainment business and those it feels infringed on their rights.

Over the last few years, the fact that the feds have effectively been working as the entertainment industry's private police force has grown more and more obvious. No one from Homeland Security seems willing to explain (and trust me, I've asked multiple times) why it is that when ICE did its domain seizures, it relied solely on claims from the industry and (even more ridiculous) announced the first round of seizures from Disney headquarters. Can you imagine how people would react if the FTC announced it was filing antitrust charges against Google... from Microsoft's offices? Or if the FCC announced it was blocking the AT&T-T-Mobile merger from Sprint's offices? Such scenarios seem preposterous, but ICE doesn't seem to recognize the clear conflict of interest in acting as the private police force for an industry, rather than actually doing its job.

Perhaps part of that is because the entertainment industry is spending a ton of money lobbying law enforcement agencies directly. Most of the time when you think about lobbying activities, you think about talking to politicians to try to get them to pass certain laws, or talking to regulators to have them adjust or change certain rules and regulations. You don't tend to think of lobbying law enforcement directly in order to convince them to do your private bidding. But, the MPAA does.

According to a disclosure report, the MPAA spent $400,000 lobbying a wide range of US government departments in the first quarter of 2011 including the FBI, Department of Justice, Department of Homeland Security, ICE and the Vice President’s Office. Issues on the table include so-called “rogue sites” including RapidShare, streaming, graduated response (3 strikes) and domain seizures.

There are no real surprises in the content covered. It's the same stuff the MPAA has been pushing for a while now. But the fact that they're directly lobbying the FBI, the Justice Department, Homeland Security and ICE should raise some eyebrows. Law enforcement should not be influenced by the desires of private companies -- especially ones with a long history of failing to adapt to changing technologies and trying to get those technologies declared illegal. Imagine if, rather than a civil lawsuit, when the VCR was introduced, the movie industry could have just had the FBI declare the things illegal?

Filed Under: copyright, criminal, doj, fbi, homeland security, ice, joe biden, law enforcement, lobbying
Companies: mpaa

Once Again, The Freedom Of Information Act Is Proving To Be Just That: An Act

from the freedom's-just-another-word-for-[REDACTED] dept

Once the word got out that a photo had been taken of Osama Bin Laden, for identification purposes, everyone and their journalistic mother filed a FOIA request to see the pictures. And as has sadly become par for the course, these requests are being stonewalled by the administration, which has apparently learned nothing from the DHS vs. "activist groups" debacle.

Sadly, this is no ordinary stonewalling. In direct violation of the FOIA terms, it looks as if these requests are being handled by Robert Gates and his staff, rather than the non-partisan FOIA employees who are supposed to be handling them, according to this official response from the Department of Defense:

The Office of the Secretary of Defense/Joint Staff FOIA Office is responding on behalf of the entire Department of Defense to all FOIA requests within the DoD for information related to the operation that resulted in the death of Osama bin Laden. Therefore, they will respond directly to you concerning the FOIA request that you sent us. 

The wording of this response certainly suggests that these OBL requests are being handled higher up, as non-partisan employees would be hard pressed to satisfy the requirements of their job and the administration's desire to keep the photos classified. Fortunately for them, their responsibility seems to have been relieved by an appointed member of President Obama's staff and the spectre of "threat to national security" duly summoned in order to wave off any inconvenient demands.

Of course, should this "threatening" photo ever make it out of its governmental quarantine, it will probably end up being 3/4 redacted and 1/4 thumb. Even so, would it kill these agencies to at least pretend they care about the rules that are supposed to govern their actions, much less the transparency that was promised so often over the past few years.

Filed Under: defense department, foia, freedom of information, homeland security

ICE Declares 'Mission Accomplished' On Domain Seizures

from the a-success? dept

It appears that assistant deputy director of ICE, Erik Barnett, is going around talking up the massive success of ICE's potentially illegal domain seizure regime. SD points us some coverage of Barnett speaking in Stockholm, where he bragged about just how successful the program has been, making a series of highly questionable claims:

"People told us that we will fail if we seize these domain names, and that we’ll look foolish," said Erik Barnett, assistant deputy director of the US government’s Immigration and Customs Enforcement (ICE) team, which began conducting Operation In Our Sites last year. "People said [that the infringers] would come back. But the reality is they didn’t – that was surprising."

I can't tell if Barnett is just totally and completely uninformed here... or lying. As plenty of people have noted, at least on the copyright side, the vast majority of the sites have reappeared, often within hours.

Barnett also makes this highly questionable claim:

"The notice says that you can challenge the seizure, but no one has yet," he added.

Yeah, that's because the US government has made it incredibly convoluted and difficult to actually challenge the seizure. While Barnett notes that the notice says you can, there is no process, and the Justice Department has done everything it can to avoid letting anyone challenge the seizure.

But the point of his speech seemed to be to suggest that other countries follow suit and begin censoring websites with no trial as well. Isn't that nice, when US officials promote censorship in other countries?

Separately, Barnett spoke to The Bureau of National Affairs (BNA) for an interview about the seizures. Unfortunately, it's totally locked up behind a paywall, but someone (anonymously) sent me a copy, and I'd like to highlight some of Barnett's more ridiculous statements there as well. He kicks it off by again thanking Congress for passing the ProIP Act, which snuck the seizure bit into law, with most people believing it meant seizing actual tools of infringement, not domain names. From there, he discusses how ICE decides what to seize:

The popularity of the website, because how popular a website is tells us how profitable. We look at a website's Alexa rankings, because the lower the Alexa ranking--meaning the more traffic a website receives--directly correlates to higher proceeds from sales, or to more revenue from advertisements.

Alexa?!? My goodness. Alexa is perhaps the least accurate website ranking system out there and is considered a total joke. Do a Google search on Alexa rankings suck, and you get nearly 34 million results. They're not even close to accurate. This does not build confidence in ICE's technological knowhow. Alexa is to website rankings what the original AOL was to the internet. It's training wheels, but not an accurate representation. Furthermore, higher popularity often does not mean greater revenue, but again, ICE is demonstrating its cluelessness about internet business models.

Whether the website is commercial in nature: We only go after websites that run advertisements, or sell subscriptions or merchandise. We are not looking at community forums or chat rooms. Rather, we are looking for websites that are making a substantial amount of money from these websites.

This is also totally bogus. Any site can run ads, but often those ads barely cover server fees. Does that really make it a "commercial" enterprise? And he's wrong when he says they're not looking at community forums or chat rooms, because at least some of the domains seized were for community forums. And as for "substantial amount of money," again that's difficult to fathom. In the various affidavits used to seize these sites, the info they received about ad revenue suggested miniscule amounts -- maybe a few hundred per month, which probably barely covered hosting, if at all. In the one actual lawsuit filed, the evidence suggested a grand total of $90,000 made in ad revenue over five years, or less than minimum wage. How is that "substantial amounts of money"?

Also interesting is that he explains how they're simply researching sites recommended by rights holders and choosing who to go after:

Once that referral is made, there will be some initial follow up by an ICE agent to see if the site falls into those general categories of what we are looking for. If it is a site that meets the criteria, what we will do is start an undercover criminal investigation, and ultimately the agent will look at the site and—working within the statutes, 18 U.S.C. Section 2319 and Section 2320—they will look at whether this is a site that is going to meet those factors.

The Justice Department then will also then have an opportunity to look at the site through the evidence that is presented either to an Assistant U.S. Attorney, or to a Justice Department trial attorney, and they will make a determination of whether or not the site meets their standards for prosecution. And then ultimately we will present that evidence to a federal magistrate judge.

He then suggests that they're seizing over 50% of the domains that have been submitted by rights holders! He claims that in the second round of seizures, for 77 URLs, they had received requests to look at 130, but only seized 77. This seems bizarre. He seems to take the default position that if a rightsholder complains about a site, it must be infringing, and he wishes they could seize more.

No wonder they seized so many sites in error. ICE seems to come at this from not just a technologically clueless position, but also one where they automatically assume that the rightsholder is right. Who knew ICE's mission was to prop up failing business models?

Towards the end of the interview, he's finally asked about the fact that so many of these sites popped right back up. And Barnett tries to turn this into a claim that it shows how successful ICE has been.

What may sound odd is that from a law enforcement perspective, that actually is also a metric of success. There was some general complacency on the part of the criminals who were engaging in trademark and copyright infringement without really any threat of enforcement. You now have individuals who have to spend more time and more money on work-arounds or diversions.

Once again, this either shows Barnett blowing smoke, or being technologically clueless. Most of these sites popped back up pretty quickly. Getting a new domain is pretty cheap and fast.

To be honest, I'm pretty disappointed that BNA -- an excellent publication -- failed to ask the serious questions about the constitutionality of the seizures, and the fact that they appear to violate basic due process and prior restraint issues found in the case law. I'm sure Barnett would have brushed off those questions, but you get the feeling sometimes that the folks at the top of ICE haven't even considered these things.

Filed Under: domain seizures, erik barnett, homeland security, ice

Why Operation In Our Sites Is Illegal And Needs To Be Fixed ASAP

from the speech-violations dept

With the latest round of Homeland Security and the Justice Department illegally seizing domain names, it seems like a good time to point people to a new paper from Andy Sellars, which he was kind enough to send over a few weeks ago (though I just had a chance to read through it), in which he does an excellent job analyzing the law, the caselaw and the overall constitutionality of Operation in Our Sites, and finds it quite lacking. He doesn't suggest that the entire program be done away with, but suggests a number of ways to bring it into line with basic First Amendment, due process and copyright law principles.

It's worth reading the whole thing, but among the key points is how this "right" to seize domains for supposed copyright infringement is one of the things that was quietly slipped into law via PRO-IP a few years back. While this point hasn't received much attention, it is important to discuss, because it highlights how the RIAA/MPAA lobbyists have a history of sneaking little timebombs and easter eggs into new laws proposed by "friendly" lawmakers. There were so many things that people were concerned about with PRO-IP that this issue of "harmonizing" seizure laws between copyright and counterfeiting was something no one paid attention to because, honestly, no one realy thought that the US government would start censoring websites. Everyone assumed, falsely it turns out, that the intention of this part of PRO-IP was to allow for the seizure of physical tools, not domain names. This is another reason why we should be fearful of PROTECT IP. Who knows what other "goodies" the RIAA and MPAA have hidden in there that will pop out in a few years' time.

Of course, even though PRO-IP may have extended seizure laws to allow for more broad seizures in copyright cases, that still doesn't make these seizures legal or Constitutional, in any sense. Defenders of the seizures often point to Terry Hart's analysis of the seizures as legal on First Amendment principles, but Sellars does a nice job dismantling Hart's analysis and showing how the seizures do not fit with existing jurisprudence on prior restraint (footnotes removed):

And the question here is not whether substantive free speech law would save the websites from copyright liability. It is clear that it would not, if adjudicated as infringing. Instead, the question is whether the in rem seizure of pure speech, done because it may be infringing, violates the procedural safeguards instituted by the First Amendment. Here, entire websites consisting of pure expression were removed, presumably because some of the speech encouraged viewers to follow links to third-party websites and commit copyright infringement. Direct copyright infringement was not being conducted on these websites at all; it was instead the cyberlockers that reproduced and distributed the content. If the speech is adjudicated to be “inducing” under that secondary liability theory the speech is likely enjoinable consistent with the First Amendment. If it is not so found, it is constitutionally protected free speech. And at this moment no court has actually turned to the merits of this claim and determined if it is indeed unlawfully inducing. Instead, a magistrate judge determined that there was a sufficient probability that it may be infringing, and used that alone to take the website down. Courts would not tolerate such a cursory review in all other areas of free speech law.

The First Amendment embodies certain procedural safeguards to help prevent free speech from being accidentally silenced while unprotected speech is enjoined. An analogy to obscenity doctrine can provide useful guidance. Like infringing speech, obscene speech is unprotected by the First Amendment. The determination of whether a work is obscene also depends entirely upon an examination of its content, requiring application of a legal test to specific facts. And in both cases the difference between protected and unprotected speech can sometimes be a “dim line.”

Courts are quite sensitive about the precarious line between proscribable speech and protected speech, and are very hostile against government efforts that engage in “prior restraint.” Prior restraints are considered the “most serious and least tolerable infringement on First Amendment rights,” and bear a “heavy presumption” against validity. Any effort to remove speech from circulation before the speech is adjudicated as unlawful can work an unconstitutional prior restraint, even when imposed after the speech is published.

To that end, courts have recognized that seizure of expressive works requires special procedural considerations.

Sellars notes, as we have in the past, that the caselaw is pretty specific that seizures involving speech should be limited to areas in which the seizure is necessary to preserve evidence and isn't done solely for the purpose of blocking that speech. That is clearly not the case here.

Needless to say, these safeguards were not followed in Operation In Our Sites. The seizures here were not done to preserve evidence, as nothing tangible was taken into custody, and it would be illogical to claim that there was any risk that a defendant would “flee” with their domain name and thus deprive the court of evidence. This seizure instead took the website out of circulation entirely, at least for a time. No administrative proceeding with the safeguards of Freedman was present. Instead, a single federal agent made a probable-cause level statement to a magistrate judge, who ruled ex parte. In striking contrast to the careful process required when seizing expressive works in the doctrine of obscenity, the seizures conducted in Operation in Our Sites show the bare minimum of process. This turns First Amendment due process on its head; it takes down speech on the basis of its content (to wit, that it is infringing content or induces others to infringe copyright) before an adversarial proceeding determines if the speech is in fact unlawful.

One of the popular explanations from Hart and one particular commenter on our site is that there is no First Amendment issue here because the seizure of the domains are not because of the domain's expressive nature, but merely because they are "property" used to facilitate infringement. Sellars punctures that claim deftly:

Critics also argue that First Amendment analysis is inappropriate because the websites were not seized because of their expressive content, but because they are “property” used to facilitate crimes. This has intuitive appeal. After all, we do not use the First Amendment to stop the closure of a bar that violates liquor laws, even though bars are often places where members of the public gather to debate the issues of the day.

The problem with this argument is it unfairly characterizes the law at issue. Copyright forfeiture is not a content-neutral law allowing for the seizure of any property used in crime. The law providing for forfeiture in copyright cases expressly incorporates substantive copyright law. Copyright itself is a content-based form of regulation: it determines the legality or illegality of speech on the basis of how the speech is expressed. To equate content based laws with content-neutral laws does not conform with First Amendment doctrine. These websites were not seized here because their domain name offended copyright. It was the speech on the website, allegedly telling people where and how to find infringing content, that was the crux of the forfeiture. The object of the domain name seizure was to constructively remove this offending speech. The analysis of illegality here begins and ends with an examination of the speech for its content.

Sellars also responds to critics who say it's important to seize these domains without a hearing or notice to stop the immediate harm of damage being done. But, as he notes, First Amendment case law on prior restraint has long held that's a meaningless argument:

This argument ignores the very reason why courts are so hesitant to engage in prior restraint in the first place. The same argument could be raised for defamatory speech, speech that could threaten national security, or speech that incites others to violence, and yet we do not tolerate prophylactic injunctions in those cases.

Sellars also does a nice job highlighting, yet again, how these seizures don't even work, which really highlights the ridiculousness of the whole thing. ICE insists it needs to seize these domains without warning, notice or adversarial hearing to stop the infringement, and yet (contrary to ICE claims) there is no indication that these seizures have slowed the use of these websites. In many cases, the websites come back more popular than before.

Finally, Sellars raises a point that is often ignored in this: that the seizures seem to go against the intent of current copyright law itself, in the form of the DMCA. For whatever its many problems, the crux of the DMCA was to try to resolve issues of copyright infringement through the ability of rights holders to issue notices and get online services to takedown the offending content. That is, the point was to avoid any judicial or law enforcement involvement altogether. And yet, there is no indication that rights holders properly notified the seized domains of issues regarding the content that was used as the basis for the seizures. In fact, there is evidence that when many of these sites did receive takedowns, they promptly complied:

This is not just coincidence or legislative good fortune for websites that frequently link to content that may be infringing. The safe harbors of the DMCA are a legislative expression of a desire to foster cooperation between online service providers and copyright owners. The legislative history around the safe harbor indicates that the provision is “intended to promote the development of information location tools generally, and Internet directories ... in particular.” The statute mandates a bargain between these two groups: the websites will have a designated person to receive complaints and respond expeditiously to remove infringing links, and in exchange the copyright owners will not sue the websites for infringement through their linking.

This spirit of cooperation vanishes when enforcement moves from an inter partes to an ex parte remedy. The copyright owner is no longer encouraged to reach out to the website owner. Instead, they will persuade ICE to file a seizure warrant to take down the disputed websites. The website owner now has no chance to expeditiously right the perceived wrong. Instead she must come forward in court and dispute the criminality of the seized domain name. A nervous website owner would probably prefer letting that website die out and starting a new one elsewhere. This induces evasion. It is therefore unsurprising that these websites have the feel of criminality; the law treated them as criminals. The forfeiture provisions of the PRO-IP Act undercut the cooperative spirit of the DMCA, when applied against websites.

Of course, Sellars' paper also offers some ways to fix Operation In Our Sites, and none are too surprising or crazy. In fact, they're things that many of us have suggested in the past: require initial action be "in personam" (against those involved, rather against the site itself), meaning that there is an opportunity for an adversarial hearing prior to the seizure. To date, despite my asking many times, no one has been able to give a reasonable answer as to why the federal government does not allow for such due process. Thankfully, at least, PROTECT IP does seem to say that an attempt should be made for an in personam action before an in rem action, but there are some pretty big loopholes. Secondly, he notes that Operation In Our Sites should follow existing standards for the seizure of speech as laid out in existing case law. Specifically, he points to the standards put forth in Freedman v. Maryland. Finally, due to the clear failure of these seizures to actually stop the actions targeted, he suggests that ICE recognize the low likelihood of success and focus on efforts that might actually have a positive impact.

All in all an excellent and worthwhile read for those interested in the legal issues here.

Filed Under: coica, copyright, domain seizures, free speech, homeland security, ice, infringement

Here We Go Again: Operation In Our Sites Round 4 Kicks Off With More Domains Illegally Seized

from the ice:-where-free-speech-is-for-suckers dept

It had been a while since Homeland Security's ICE group stomped on anyone's free speech and due process rights, so it seems they had to just run out and illegally seize a bunch more websites this weekend, once again without any notice or adversarial hearings as required by the Constitution and the case law on the matter. What's truly bizarre is that the folks at ICE are fully aware that these actions are unconstitutional and they are still moving forward with them. Having spoken to numerous people involved on all sides of these seizures (more on that soon), the picture that's becoming clear is that many of the ICE agents are uncomfortable with these seizure procedures, feeling (as many of us have suggested) that their considerable resources and time should be focused on stopping actual crimes, not people putting up blogs and forums online. At the same time, there is tremendous pressure from the top, driven by an almost fever pitch of lobbying efforts by the RIAA and MPAA to shut down parts of the internet that they can't figure out how to compete with.

TorrentFreak is keeping a list of the seized domains for now, and once again, it appears to be a mix of linking sites and some that are involved in trademark infringement. In fact, some of the sites seem to just link to other streaming sites. This seems incredibly problematic, in that they seem to involve a gross expansion of what the law actually says concerning indirect infringement and criminal liability. But, even if you could read the law in the extreme manner suggested by ICE and the Justice Department, it doesn't change the fact that these seizures are improper under the Constitution. It's pretty sad, because Homeland Security and the Justice Department are supposed to be about defending the Constitution, not ignoring it.

Filed Under: copyright, domain seizures, due process, free speech, homeland security, ice, operation in our sites

DHS's ICE Group Accused Of Lying To Court About Expense Of Complying With FOI Request

from the but-of-course dept

Having just filed a Freedom of Information Act (FOIA) request concerning documents from Homeland Security's Immigration and Customs Enforcement (ICE) division, you can bet that it caught my attention that ICE is now being accused of lying to a court in claiming massive expenses to comply with a FOIA request for metadata on documents. After some back and forth, a court had ordered ICE to provide the specific data under the FOIA. ICE told the court that it was using a product from a company called Clearwell, but that it ran into technical and monetary hurdles, including having to spend $270,000 in upgrades, and also that it had to suspend security protocols to run the applications.

Apparently, Clearwell's competitors have been having a field day with this, using the filing by the government to bash Clearwell's product, so the company put out a blog post that claims ICE was basically lying to the court:

Neither OPLA nor any other part of ICE paid a dime for upgrades or a new server. In reality, its use of the product for this matter is covered under ICE’s existing license, and we provided an extra server and services for free to help them meet a tight deadline. . . .

In 16 working days, Clearwell was used to process a large volume of information and produce nearly 15,000 pages of Opt-Out Records . . . To help ICE meet its deadline, two Clearwell consultants worked onsite during this period – at absolutely no cost to ICE.

Apparently, it's not a good idea to use such things as an excuse when the company you're claiming was the problem has the ability to speak up itself. Of course, my request isn't for any metadata, so hopefully they can avoid having to spend $270,000 to find the few documents I requested.

Filed Under: foia, freedom of information, homeland security, ice

Homeland Security Doesn't Do Cost/Benefit Analysis; They Just Do Fear And Bluster

from the you-might-die!!!!!! dept

This should hardly come as a surprise, but a new paper that analyzes money being spent on Homeland Security finds that it's incredibly wasteful (found via Julian Sanchez). You can read the full report (pdf) by John Mueller and Mark G. Stewart, which probably confirms what most people were already thinking. Basically, Homeland Security has ratcheted up spending at a massive rate, and there's little to no effort to judge that spending against the actual risk reduction. That is, there's simply no one doing any sort of real cost-benefit analysis on this spending. The report seeks to do some of that, and what it finds isn't pretty. From the abstract (with my emphasis):

The cumulative increase in expenditures on US domestic homeland security over the decade since 9/11 exceeds one trillion dollars. It is clearly time to examine these massive expenditures applying risk assessment and cost-benefit approaches that have been standard for decades. Thus far, officials do not seem to have done so and have engaged in various forms of probability neglect by focusing on worst case scenarios; adding, rather than multiplying, the probabilities; assessing relative, rather than absolute, risk; and inflating terrorist capacities and the importance of potential terrorist targets. We find that enhanced expenditures have been excessive: to be deemed cost-effective in analyses that substantially bias the consideration toward the opposite conclusion, they would have to deter, prevent, foil, or protect against 1,667 otherwise successful Times-Square type attacks per year, or more than four per day. Although there are emotional and political pressures on the terrorism issue, this does not relieve politicians and bureaucrats of the fundamental responsibility of informing the public of the limited risk that terrorism presents and of seeking to expend funds wisely. Moreover, political concerns may be over-wrought: restrained reaction has often proved to be entirely acceptable politically.

In seeking to evaluate the effectiveness of the massive increases in homeland security expenditures since the terrorist attacks on the United States of September 11, 2001, the common and urgent query has been "are we safer?" This, however, is the wrong question. Of course we are "safer"--the posting of a single security guard at one building's entrance enhances safety, however microscopically. The correct question is "are the gains in security worth the funds expended?" Or as this absolutely central question was posed shortly after 9/11 by risk analyst Howard Kunreuther, "How much should we be willing to pay for a small reduction in probabilities that are already extremely low?"

Among other things, the report looks at everyone's favorite DHS boondoggle, the naked radiation scanners at the airport by the TSA. Apparently, DHS was directly told by the GAO to study the cost-benefit and it refused to do so. The same is true of other DHS expenditures:

Indeed, at times DHS has ignored specific calls by other government agencies to conduct risk assessments. In 2010, the Department began deploying full-body scanners at airports, a technology that will cost $1.2 billion per year. The Government Accountability Office specifically declared that conducting a cost-benefit analysis of this new technology to be “important.”12 As far as we can see, no such study was conducted. Or there was GAO’s request that DHS conduct a full cost/benefit analysis of the extremely costly process of scanning 100 percent of U.S.-bound containers. To do so would require the dedicated work of a few skilled analysts for a few months or possibly a year. Yet, DHS replied that, although it agreed that such a study would help to “frame the discussion and better inform Congress,” to actually carry it out “would place significant burdens on agency resources.”

Of course, from a political perspective, this makes perfect sense. It's all game theory. You don't get praised and promoted for doing a cost-benefit analysis that saves taxpayer money from wasteful and useless projects if a terrorist attack happens. So the end result is that the incentives for everyone at DHS to just spend as much as possible in the hopes that it stops something, knowing that if anything bad happens (as it inevitably will), all of the blame will go towards anyone who said "we shouldn't do project x that would have prevented attack y."

Of course, the real problem is that this is exactly what our enemies would like. They don't care about "terror" for the sake of terror. They want the US to spend itself silly to completely bankrupt the country. And it appears to be working. That doesn't make me feel any safer at all, no matter what the cost.

Filed Under: benefit, cost, fear, homeland security

Homeland Security Demands Mozilla Remove Firefox Extension That Redirects Seized Domains

from the touchy,-huh? dept

Apparently, the folks at Homeland Security are not at all pleased with the very, very simple Firefox extension, called MAFIAAfire, that negates ICE's domain seizures, by automatically rerouting users to alternate domains. Apparently, DHS demanded that Mozilla take the extension down from its listing of Firefox extensions claiming that the add-on "circumvented" DHS's seizure orders. Thankfully, Mozilla didn't just fold, but instead left it up and sent DHS a list of questions concerning the request. The list of questions is really fantastic, as it goes way beyond the direct request to really get to the heart of the questionable nature of ICE's activity with domain seizures:

To help us evaluate the Department of Homeland Security's request to take-down/remove the MAFIAAfire.com add-on from Mozilla's websites, can you please provide the following additional information:

1. Have any courts determined that MAFIAAfire.com is unlawful or illegal in any way? If so, on what basis? (Please provide any relevant rulings)

2. Have any courts determined that the seized domains related to MAFIAAfire.com are unlawful, illegal or liable for infringement in any way? (please provide relevant rulings)

3. Is Mozilla legally obligated to disable the add-on or is this request based on other reasons? If other reasons, can you please specify.

4. Has DHS, or any copyright owners involved in this matter, taken any legal action against MAFIAAfire.com or the seized domains, including DMCA requests?

5. What protections are in place for MAFIAAfire.com or the seized domain owners if eventually a court decides they were not unlawful?

6. Can you please provide copies of any briefs that accompanied the affidavit considered by the court that issued the relevant seizure orders?

7. Can you please provide a copy of the relevant seizure order upon which your request to Mozilla to take down MAFIAAfire.com is based?

8. Please identify exactly what the infringements by the owners of the domains consisted of, with reference to the substantive standards of Section 106 and to any case law establishing that the actions of the seized domain owners constituted civil or criminal copyright infringement.

9. Did any copyright owners furnish affidavits in connection with the domain seizures? Had any copyright owners served DMCA takedown notices on the seized domains or MAFIAAfire.com? (if so please provide us with a copy)

10. Has the Government furnished the domain owners with formal notice of the seizures, triggering the time period for a response by the owners? If so, when, and have there been any responses yet by owners?

11. Has the Government communicated its concerns directly with MAFIAAfire.com? If so, what response, if any, did MAFIAAfire.com make?

It's always nice to see some organizations not just roll over when the government comes calling. Kudos to Mozilla for not just refusing to takedown MAFIAAfire, but for also asking serious questions of DHS. Of course, DHS has refused to respond at all...

Filed Under: dhs, domain seizures, firefox, homeland security, ice, mafiaafire, mozilla
Companies: mozilla

Homeland Security Complains To USTR That ACTA Is A Threat To National Security

from the oops dept

Well, this is surprising. In response to a Freedom of Information Act request, KEI happened to get its hands on a Homeland Security "position" letter about ACTA written all the way back in 2008. The policy letter surprisingly warned that DHS felt ACTA was a potential threat to national security, in that it could restrict DHS and ICE specifically from putting in place their own policies to deal with infringement. Now, having seen ICE's idea of fighting infringement being seizing domains without much research, due process or concerns for the First Amendment... perhaps that's a good thing. But it's still interesting to see DHS warn that ACTA represents a threat to national security. The cover letter to the USTR warns:

"I am concerned that some possible outcome of the ACTA negotiations may harm national security and the ability of Customs and Border Protection (CBP) to exercise managerial discretion in setting priorities for intellectual property right (IPR) enforcement."

Then it includes the short position paper, which highlights numerous concerns with ACTA, some of which were dealt with in later drafts of ACTA, but not all of them. In particular, it's interesting to see DHS explicitly note that it wants to make sure that ACTA doesn't lead other countries to "devote resources to IPR enforcement at the expense of more important anti-terrorism efforts."

DHS also makes it clear that, contrary to claims from tons of ACTA supporters, the original intent of the proposal was to bind Congress -- something that DHS is quite worried about:

the proposed language on the "Border Measures" section of ACTA could codify in international law, certain provisions that would be unfavorable to CBP and, once adopted as an international agreement, even Congress would be unable to alter the rules to make them more economically justifiable. .

DHS also questions why the government should be the one to enforce intellectual property issues, rather than the rights holder directly (apparently, the new folks in charge at DHS have no such qualms):

. . . The cost of enforcing private rights, such as trademarks, can reasonably be placed on the beneficiary. That is particularly true in a context such as this; rights holders often have a choice whether to bring enforcement actions on their own or through border measures. That choice should not be influenced by the consideration that using governmental enforcement resources will save the rights holder the cost of storing and destroying the infringing goods. For these reasons, if CBP concludes that waiving storage or destruction fees has created an unhealthy incentive to shift enforcement from the private sector to government, it should have authority to recommend that fees for storage and deconstruction be charged to the beneficiary of the enforcement action.

This section of ACTA could be interpreted as taking away that authority and protecting rights holders from measures to recover costs incurred for their benefit. This is imprudent and difficult to justify on fiscal or policy grounds.

The report also worries that ACTA will harm "international goodwill," and that ACTA could come back to haunt the US by letting other countries punish US companies under ACTA rules. That was certainly prescient, though it appears the USTR ignored that part:

ACTA would expend international goodwill by requiring other governments to change organizational and legal structures. . . .

In essence, this language would encourage foreign customs authorities to bar imports and exports if the authorities concluded on their own intiative that the goods might violate copyright or be confusing similar to trademarked goods. These are sweeping powers to act against suspected IP violators, and the powers can easily be misused either intentionally or unintentionally. Misuse could even harm small U.S. exporters competing with foreign companies favored by local governments. Generally speaking, the customs agencies of the other participating countries do not possess the same level of authority as CBP -- many of them are not designated competent authorities to make determinations on IPR infringements. This substantially increases the risk that the sweeping powers wiill be misused. . .

Many of these concerns were dead on, though it appears that the USTR only took a few superficial concerns into account. Also, it appears that DHS's more recent obsession with aggressively acting as Hollywood's private police force means that the current management isn't as aware of the negative impact of these actions.

Filed Under: acta, copyright, homeland security, national security, trademark

ICE Redefines Detainment For Wikileaks Helper: You're Not Being Detained, You Just Can't Leave

from the our-government-at-work dept

Earlier this year, we wrote about computer security expert, Tor developer and Wikileaks volunteer Jacob Appelbaum, who was regularly being detained and intimidated by Immigration and Customs Enforcement officials each time he (a US citizen) traveled into the country. If you follow Jacob's Twitter feed, you get detailed descriptions each time he flies back into the country of the hassles he has to go through. Every time he's detained and never once given an explanation for why or what is being searched for. He's often lied to and frequently told that it's a "random" search. He certainly knows enough that he wipes all of his electronic equipment before traveling across the border.

In the latest case, upon returning from a conference in Europe by flying into Houston, Appelbaum again asked his detainers why he was being detained, and was once again not given a straight answer. He knows that there's something on the screen that they pull up on their computers, but they refuse to provide him with any info. This time, they even went so far as to redefine detainment, telling him that he wasn't being detained, but that he just couldn't go until they were done with him. Perhaps he should send Homeland Security a copy of a dictionary with the definition of "detained" highlighted.

Of course, this is also the same Jacob Appelbaum whom the US government has been secretly requesting information on from various online service providers, as the US government seeks to make its case against Wikileaks. Is it really so difficult for the US government to be upfront with Appelbaum about why he's being detained? Is it really a matter of national security that they can't say "hey, look, the Justice Department is frantically trying to find something -- anything -- that can be used in a case against Wikileaks, and we're coming up blank, so we're going to search your computer equipment based on nothing, just in case you might have something in there that we can use to prosecute Julian Assange."

Filed Under: airport, detention, homeland security, ice, jacob appelbaum