Homeland Security's Domain Name Seizure May Stretch The Law Past The Breaking Point

from the taking-the-due-out-of-due-process dept

We had a bunch of questions concerning the legality of Homeland Security's seizure of domain names via its Immigration & Customs Enforcement (ICE) group. The whole thing seemed of extremely dubious legality. And it appears we're not the only ones to think so.

First, it's important to understand exactly what happened. Copycense points us to a useful analysis of how the seizures actually worked. Amazingly, it appears that Homeland Security contracted out the seizures to a private company, immixGroup IT Solutions, which set up the "seizedservers.com" domain that the seized domains now point to. The other bit of useful info is that the seizures appear to have been done directly by VeriSign at the top level domain level. VeriSign, of course, controls the .com TLD, and so Homeland Security appears to have just asked VeriSign to move the domains (with a court order, of course), and it did so.

So that takes care of the technical issues. What about the legal ones? Well, Larry Downes, who knows a thing or two about the legal issues here, has a great blog post detailing some of the serious constitutional questions raised by these seizures. He goes through the details of civil forfeiture law, noting that, while seizure is allowed both pre-trial and post-trial:

pre-trial seizure is premised on the idea that during the investigation and trial, prosecutors need to secure the items so that the defendant doesn’t destroy or hide it.

Clearly that's not an issue with domain seizures. Hell, since it was only the domains that were seized (not the servers and the content itself), there's not even anything to destroy. This is where things get very questionable. Downes notes that many legal scholars have been greatly worried about the whole concept of pre-trial seizures, noting that it appears to "reverse the presumption of innocence, forcing the property owner to prove the property is 'innocent' in some way." While it's true that the domain holders can step in and fight the seizure, as Downes points out, the length of time before any trial occurs makes the whole operation prohibitively costly. And even Homeland Security is acting as if the sites have already been proven guilty, despite the fact that the whole premise of such seizures is that no guilt has yet been established:

If prosecutors drag their heels on prosecution, the defendant gets "punished" anyway. So even if the defendant is never charged or is ultimately acquitted, there's nothing in the forfeiture statute that requires the government to make them whole for the losses suffered during the period when their property was held by the prosecution. The loss of the use of a car or boat, for example, may require the defendant to rent another while waiting for the wheels of justice to turn.

For a domain name, even a short seizure effectively erases any value the asset has. Even if ultimately returned, it's now worthless.

Clearly the prosecutors here understand that a pre-trial seizure is effectively a conviction. Consider the following quote from Immigration and Customs Enforcement Director John Morton, who said at a press conference today, "Counterfeiters are prowling in the back alleys of the Internet, masquerading, duping and stealing." Or consider the wording of the announcement placed on seized domain names... implying at the least that the sites were guilty of illegal acts.

The thing is, it appears that Morton and ICE have clearly gone pretty far in stretching civil forfeiture laws, way beyond their purpose and intention (and limitations), in order to seize these domain names. And it's only going to be a matter of time until some of the holders of these domain names step up and challenge the government on these activities, which appear to conflict with basic due process, let alone free speech issues (since websites are a form of speech, this goes beyond a straight property seizure as well). As Downes notes:

The farther prosecutors push the forfeiture statute, the bigger the risk that courts or Congress will someday step in to pull them back.

It seems like the time for Homeland Security/ICE to be "pulled back" is now. Congress almost certainly won't do it, but hopefully the courts will do the job.

Filed Under: copyright, domain names, due process, homeland security, ice, john morton, seizures

Australia Says No Warrants Necessary If Law Enforcement Thinks You're A Terrorist

from the well-isn't-that-nice dept

chillienet alerts us to some new rules for law enforcement regarding private searches down in Australia. Apparently as long as police think you just might be a terrorist, they no longer need to get a search warrant. I'm sure that won't be abused at all... The whole point of requiring warrants is to avoid abuse. Taking away that check almost guarantees that the powers will be seriously abused.

Filed Under: australia, due process, searches, terrorism, warrants

Paul McGuinness Thinks Recognizing Due Process Is Bad For Ireland's Reputation?

from the really-now? dept

Ah, Paul McGuiness. U2's manager, who seems to be very, very confused in always blaming everyone else for not making him even wealthier, has apparently responded to the news we recently wrote about, concerning an Irish court recognizing that ISPs have no legal obligation to kick file sharers off the internet on a three strikes regime. Now, this should be common sense based on the fact that there is no "three strikes" law in Ireland. The record labels were trying to force ISPs to implement three strikes by just claiming it was legally required, but without any actual basis in the law. Even if you support three strikes laws, you have to admit that the law needs to actually have that provision before ISPs are required to obey the demands of the record labels to kick people offline. You would think it's hard to argue against that.

But, this is Paul McGuinness we're talking about.

Zeropaid points us to McGuiness's response to the legal ruling, where he basically goes off the deep end, in suggesting that this rather straightforward reading of the law somehow harms Ireland's reputation:

"This is extremely bad for the international reputation of Ireland as a jurisdiction with appropriate legal protection for all kinds of Intellectual Property and copyright generally."

How so? Seriously. I'm wondering how anyone in their right mind could possibly believe that a court saying "gee the law doesn't say that, so it's not required" harms Ireland's reputation. He then insists that Ireland needs to pass a three strikes law to "fix" this awful ruling:

"The government must now as a matter of urgency, do its job properly and implement the required EU legislation without further delay."

Um, except this is flat-out wrong. There is no "required EU legislation" that mandates three strikes. In fact, after serious debates in which members of the EU Parliament initially rejected three strikes rules, they eventually reached a compromise that allows three strikes under some very specific conditions, which are clearly not met by the attempts to automatically enforce three strikes in Ireland. I mean, at this point, McGuiness is flat-out making stuff up. It makes you wonder why anyone takes him seriously.

Filed Under: due process, ireland, paul mcguinness, three strikes

How The Attempted Censorship Of File Sharing Sites Avoids Due Process

from the day-in-court? dept

We've already covered how some US Senators are pitching a bill to censor websites that are deemed centered around "infringing" uses, and noted the irony of the bill's lead sponsor, Senator Patrick Leahy, decrying internet censorship in other countries. That said, the more people dig into the details, the worse this bill appears to look. The EFF does a good job highlighting many of the rather serious problems with the bill.

While most of the press coverage has discussed the process by which the Justice Department can go to a judge and get a website added to a blacklist, which ISPs and registrars will have to block, there's another part that hasn't received nearly enough attention: which is that there's an effective loophole that could allow similar blocks without judicial review:

The first is a list of all the websites hit with a censorship court order from the Attorney General. The second, more worrying, blacklist is a list of domain names that the Department of Justice determines -- without judicial review -- are "dedicated to infringing activities." The bill only requires blocking for domains in the first list, but strongly suggests that domains on the second list should be blocked as well by providing legal immunity for Internet intermediaries and DNS operators who decide to block domains on the second blacklist as well. (It's easy to predict that there will be tremendous pressure for Internet intermediaries of all stripes to block these "deemed infringing" sites on the second blacklist.)

We've seen this game in the past, of course. Generally when you provide companies immunity for sites doing something, they'll do it. So, suddenly we're taking the most basic judicial oversight out of the process of allowing the Justice Department -- which, again, is still staffed with a bunch of former entertainment industry lawyers -- choose which sites should be blocked. It's difficult to see how anyone could think this is a reasonable idea.

Filed Under: censorship, copyright, due process, orrin hatch, patrick leahy

ISP Accused Of Using One Unsubstantiated Strike From The ESA To Close Down Account

from the one-strike dept

Forget "three strikes," according to some folks, there are ISPs using only a single claim of copyright infringement to kick people off their network. Reader Dez submits a story of a woman who apparently lost her ISP account after the Entertainment Software Association (ESA) sent a single complaint about copyright infringement on her account -- a claim which she insists is bogus:

And then today I get a call from whoever last bought our account saying that they turned our Internet connection off because they received a notice from the Entertainment Software Association that claimed that we had pirated software.

...which is funny because the only thing I have torrented in the past year is Ubuntu. You know, Linux. Freeware Linux.

Needless to say she's not happy. She apparently called the ESA, and they didn't seem to believe her:

And also, fuck the Entertainment Software Association and your phone guy who didn't want to believe that wardriving is a real thing or that perhaps one of our neighbors was using our wifi while I didn't have our router locked down (while setting up the PS3 on the network), or even when it was (it's really not that hard to hack a router).

Now, obviously, this is just one side of the story, but it does seem troubling that an ISP might be kicking people off with no apparent recourse after a single accusation (not conviction) of copyright infringement. Has this happened to anyone else?

Filed Under: copyright, due process, one strike
Companies: esa

UK House Of Commons On Digital Economy Bill: We'll Approve Now, Debate Later?

from the wash-up dept

Despite tens of thousands of people writing their MPs, and multiple MPs asking for approval of the Digital Economy Bill to be delayed, it looks like the Leader of the House of Commons, Harriet Harman, has decided that the bill will be rushed through via a "wash up," no matter what. Glyn Moody points us to an image showing that a lot of MPs simply decided not to even show up for the discussion, which is a bit of a disgrace.

Even worse, though, is that Harman is pretending that the bill is not being rushed through, even though the bill will go through the wash up process. Her argument seems quite disingenuous -- suggesting that even though the bill won't get to go through the normal process of debate, there will still be opportunities to make changes after the bill has been approved -- though it appears that some politicians seem to think that's mere window dressing, and the later debate/amendments will never actually happen. The whole thing seems quite bizarre. Basically, it looks like the plan is to approve the bill and debate it later. There still will be a brief debate and vote tomorrow evening which, in theory, could kill the bill, but most reports appear to believe it's a foregone conclusion that the current bill will be approved -- and then (maybe, possibly, but probably not really) the controversial bits will be debated later.

Filed Under: copyright, digital economy bill, due process, uk, wash up

UK Digital Economy Bill Concession Is To Allow In A Smidgen Of Due Process, After You've Been Declared Guilty

from the guilty-until-appealed-innocent dept

As the debate continues in the UK over the Digital Economy Bill, Stephen Timms, the minister for Digital Britain, is trying to appease critics of the bill, by promising to include an appeals process for those who are accused of copyright infringement and threatened with having their internet access removed. This is mind-boggling for a few reasons. First, the admission shows that such an appeals process hadn't been in the plan already. More importantly, it shows the general thinking: this is a guilty-until-proven-innocent process. You get accused and you're guilty until you "appeal" and can prove that you were falsely accused. That doesn't seem like reasonable due process. That seems like stacking the deck in favor of copyright holders against the public.

Filed Under: appeals, copyright, digital economy bill, due process, stephen timms, uk

News.com Prevents Falsely Accused Grandmother Of Getting Kicked Off The Internet By The MPAA

from the but-who-will-protect-anyone-else? dept

One of the problems we've had with the whole "three strikes" concept that would kick people off the internet due to accusations, not convictions, of file sharing, is the fact that we hear all the time about innocent users accused of file sharing. Greg Sandoval, over at News.com recently came across a grandmother who was falsely accused multiple times of file sharing, and her ISP, Qwest, was threatening to kick her off the internet. We had not heard that Qwest had signed on with a "three strikes" program, so it's a bit of news that it's one of the companies who will accept bogus accusations. Not only that, but Qwest even told her that no other provider would grant her service because Qwest would let those other service providers "know her name and what she did." Thanks, Qwest!

The problem, of course, was that Cathi Paradiso didn't share any of the movies or TV shows she was accused of sharing, and she works from home as a recruiter -- so losing her internet access would be devastating. But the only way she got Qwest to back down was because Sandoval and News.com became interested in the story and convinced Qwest to look deeper. But if Paradiso hadn't been able to draw attention to herself from the press, she would have had no recourse. There was no one she could appeal to, and no official process to respond to the bogus claims of Hollywood. She got lucky that News.com was willing to pick up her story and contact Qwest, but what about anyone else threatened with bogus notices? Meanwhile, BayTSP, the company whose "evidence" has been shown to be flimsy and easily falsified in the past, stands by accusing her of file sharing, saying it was her own fault for having an open WiFi network, suggesting there's something inherently wrong with sharing your WiFi. Yes, the company stands by its false accusation. Nice company.

Filed Under: due process, false accusation, file sharing, three strikes
Companies: baytsp, qwest

New Zealand Brings Back Three Strikes... With Some Oversight

from the well,-it's-a-step dept

Last year, you may recall that New Zealand tried to sneak through a "three strikes" type law that relied solely on accusations and would kick people off the internet. After first resisting, the government realized that public outrage over the plan was too strong and scrapped the plan, but admitted it was planning to try again, though with a bit more oversight.

It looks like that's exactly what's happened. The New Zealand government has released its new three strikes plan that is a bit more sane. You can still get kicked off the internet, which is troubling, but it's a much more involved process. The system involves a notice-and-notice offering, whereby copyright holders notify an ISP, who notifies the user. After three notices, you don't face disconnection, but a government tribunal, who can fine the user monetarily, but only to recover "damages," not for punitive reasons. Finally, if there are still more signs of infringement, the rights holder can take the user to court, which can lead to much larger fines and the possibility of losing an internet connection for six months. Throughout the process, the user will be able to appeal.

This is certainly a lot more reasonable than the original plan, but I still find any plan that involves kicking people off the internet entirely for their actions to be draconian and impossible to enforce reasonably. These days, your mobile phone or even a desk phone may use the internet, and many people require internet access for their jobs. It seems ridiculous to kick people off entirely.

Filed Under: copyright, due process, new zealand, three strikes

Brooklyn Law School No Fan Of Due Process; Apparently Handing Names Over To MPAA [Updated]

from the what-are-they-teaching-students dept

You have to wonder what the Brooklyn Law School is teaching its students about due process, since it recently sent an email to all students saying that after receiving complaints from copyright holders about file sharing movies and TV shows, it was going to associate the IP addresses with names and hand them over to the copyright holders. Of course, this is based solely on an IP address, which is not particularly accurate or reliable as a unique identifier of an individual, so what Brooklyn Law School is basically telling its students is that it doesn't care if they falsely accuse them of file sharing, and the students should work it out with someone else. Not exactly the sort of lesson that you would think a law school wants to teach its students. Update: Ah, the power of a little attention. Apparently the school has already backed down and said that it will only do what is legally required by the DMCA, which does not include simply handing over names.

Filed Under: due process, law school
Companies: brooklyn law school