Are Homeland Security's Domain Seizures Actually Working? Doesn't Look Like It

from the the-definition-of-insanity dept

In talking about Homeland Security's domain name seizures, one of the lines that's been trotted out by Homeland Security and supporters of these actions, such as the MPAA, is that these seizures are "working" in terms of taking down sites and keeping them down. We've pointed out that this was not true, but the good folks over at TorrentFreak went deeper and looked at all of the sites seized for copyright infringement claims, and found that the vast majority of them came back online pretty quickly, contrary to the claims of both the MPAA and Homeland Security. So, why do they keep claiming that these seizures are working?

Filed Under: coica, copyright, domain seizures, homeland security, infringement

Once Again, Court Says Homeland Security Is Free To Seize & Search Your Computer Without A Warrant At The Border

from the bad-rulings dept

We've noted, repeatedly, how troubling it is that customs seems to feel no duty to obey the 4th Amendment at the border, and that the courts have allowed this. It's even worse when it comes to searching digital devices, such as laptops. As we've explained before, what you have access to via your laptop is entirely different than what you pack in a suitcase for entering the country:

1. You mostly store everything on your laptop. So, unlike a suitcase that you're bringing with you, it's the opposite. You might specifically choose what to exclude, but you don't really choose what to include. With a suitcase, you specifically choose what to include.
2. The reason you bring the contents on your laptop over the border is because you're bringing your laptop over the border. If you wanted the content of your laptop to go over the border you'd just send it using the internet. There are no "border guards" on the internet itself, so content flows mostly freely across international boundaries. Thus if anyone wants to get certain content into a country via the internet, they're not doing it by entering that country through border control.

And this becomes even more ridiculous in the era of cloud computing, where a drive may be mounted over the network, and thus never actually cross the border at all -- and yet, Homeland Security seems to think it has the right to search all of this, and the courts have mostly agreed.

And, once again, we have yet another appeals court ruling that says this is fine even if the laptop is taken away from the customs station and brought into the country. We've had similar rulings in the past, and this one involves laptops that were taken away from the border and brought to another location, 170 miles away, where they were searched. The lower court said this evidence could not be used, but the appeals court reinstated the evidence, claiming that tossing out such evidence "would only reward those individuals who, either because of the nature of their contraband or the sophistication of their criminal enterprise, hide their contraband more cleverly or would be inclined to seek entry at more vulnerable points less equipped to discover them."

But that makes no sense. I mean, if you're good at hiding your "contraband" that's already true. Nothing about this ruling changes that. All this ruling does is say that it's okay for border officials from Homeland Security to search through your stuff without reasonable suspicion. It's not about rewarding people who better hide things, it's about the basic requirement of the 4th Amendment that there be probable cause before the government can take your stuff and search it. Only the dissenting judge seemed to recognize this basic issue in the ruling, which is embedded below, noting: "I add my voice to the chorus lamenting the apparent demise of the Fourth Amendment."

The majority ruling claims that it's not setting up an "anything goes" situation at the border, but it's difficult to see how it's placed any limits at all on Homeland Security. It claims that it's fine to search laptops at the border, because Homeland Security and ICE have a compelling reason to keep material out of the US that it doesn't want crossing the border. But, when it comes to digital content, that's just silly. No one is crossing the border with a laptop to "get content into the country." They can do that using the internet just fine. Claiming that searching the contents of a laptop are like searching a suitcase is as if you are technically illiterate.

Of course, since this is a child porn/child abuse claim, it's easy to say that it's a "good thing" that the search caught this guy -- which it did. And I'm happy he was eventually arrested. But I'm still troubled with how the evidence was collected, and anyone who crosses the border with their computers should be equally concerned. Don't let the fact that this case was about child pornography detract from the important issues about your own privacy rights concerning information stored on a laptop.

Filed Under: 4th amendment, border, computers, homeland security, ice, searches

Homeland Security Says They Could Strip Search Every Airline Passenger If They Wanted To

from the what-fourth-amendment? dept

Michael Scott points us to Bob Barr highlighting how Homeland Security, in its defense of airport scanners and patdowns, has said that, if it chose to do so, it could strip search every airline passenger, without any 4th Amendment scrutiny. I guess it's only out of their own kindness that they've chosen not to do so. Of course, this raises some pretty key Constitutional questions. If the TSA can strip search anyone with no reason at all, then does the 4th Amendment really exist? Yes, courts have said that the basic scanning of airline passengers is Constitutional, but it does not appear to have set any real limits on that scanning. And that's part of the reason why security theater at the airports just keeps ratcheting up. But at some point, shouldn't we step back and ask if such a scenario, in which everyone who flies is first strip searched, could possibly match with what the framers of the Constitution meant when they said:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

It's more than a bit troubling that we keep seeing more and more chipping away at the Constitution, as people (including judges and politicians) make excuses about how it's effectively "okay this time, because..." where the "because" can and will be stretched, twisted and distorted to the point that the original Constitutional keystones no longer really exist.

Filed Under: 4th amendment, homeland security, patdown, strip search, tsa

Feds Really Do Seem To Think That Linking To Infringing Content Can Be A Jailable Offense

from the are-they-serious? dept

Last week we covered the somewhat surprising arrest of Brian McCarthy, the operator of Channelsurfing.net, on charges of criminal copyright infringement. As we noted at the time, this seemed like a pretty questionable charge. I could potentially see a civil charge against him using the court-created concept of "inducing" infringement (a concept that Congress rejected...), but there is no inducement standard in criminal infringement. It's possible that the feds could go with an aiding and abetting charge, but that requires a much higher standard, and it's not clear that the feds have enough to make such a claim really stick. At the time, we didn't have the complaint, but the folks at DemandProgress have obtained a copy of the complaint, which we've also embedded below.

There doesn't seem to be anything there. In fact, the complaint against McCarthy seems to mostly be copied and pasted from the original affidavit used to seize Channelsurfing.net. As we pointed out at the time, that affidavit relies on the extremely questionable claim that merely linking to infringing content can represent criminal infringement. As Demand Progress notes, letting Homeland Security and the Justice Department claim that linking to or embedding content can be a criminal act should be horrifying to anyone who understands the very basics of how the internet works. Once again: they're not claiming that McCarthy made any copies. They're not claiming he distributed any copies.

Section 106 of the Copyright Act covers the six exclusive rights that copyright is supposed to provide. I can't see how McCarthy violated any of these. He did not reproduce the works. He did not prepare derivative works. He did not distribute the works. He did not perform the works. He did not display the works. At best, I'm guessing people who don't actually understand the technical issues will try to claim he displayed the works. But that's technically incorrect. No where on his server did he have or display any of these works. Instead, he pointed people to where the works were available. Some of his users may have seen displays of the works, but those were from their own browsers calling to entirely separate servers for those works.

So, as expected, the specific charges are incredibly questionable and seem to be based on a theory of copyright law that has been completely made up by Homeland Security and the Justice Department. That's kind of scary.

Homeland Security and the Justice Department clearly have gone way overboard here. Beyond the basic questions about the domain seizures (due process and First Amendment), now there are additional questions about them simply making up what they want copyright law to say, rather than what it actually does say. And when that leads to a conclusion that linking can be a jailable offense, it's time for them to seriously rethink their actions.

Filed Under: brian mccarthy, copyright, homeland security, links

ICE Arrests Operator Of Seized Domain; Charges Him With Criminal Copyright Infringement

from the is-there-secondary-criminal-infringement? dept

While Homeland Security's Immigration and Customs Enforcement (ICE) group has been seizing lots of domains under questionable legal theories, it has been slow to follow through on any sort of actual lawsuits. However, with one of the domains seized a month ago, channelsurfing.net, ICE has now arrested someone and charged him with criminal copyright infringement, such that he's now facing five years in jail (as well as fines). This is interesting, because when that domain was seized, we had noted that channelsurfing did not appear to host any content itself, but merely embedded content from other sites. That raises an awful lot of serious questions: specifically, what part of copyright law is infringed here. The site does not host any of the content. It does not make any copies. It does not distribute the content. All it does is put in a snippet of code that a user's web browser then uses to request content from another site.

About the only thing that could be claimed is some sort of "inducement" claim -- but as we discussed recently, there's simply no such thing as criminal contributory infringement, so if that's the claim, then it would appear that ICE (yet again) is simply making up what it wants the law to be, rather than what the law actually says. Now, there may be more to this than has been made clear to date. Perhaps there's evidence that the site actually did host content, but that was not clear from what I saw earlier. Some have said that there's an "aiding and abetting" charge to be made under criminal law, but as we pointed out in the link above, the standard for aiding and abetting are much, much higher, and there's little evidence that ICE has enough to meet the aiding and abetting standard.

On top of this, there are serious questions about why this should be a criminal claim, rather than a civil claim. ICE appears to be using the fact that the guy, Bryan McCarthy, made some money, from ads on the website, as the basis for the criminal charges. But that seems like a stretch (at best). While we still question why there should even be such a thing as criminal copyright infringement, even if we accept the idea that it does exist, isn't it supposed to be focused on those doing significant behavior where the connection between the infringement and the money making is clear and direct? Putting some ads on a website that earn a small amount of money (as is the case here) shouldn't be enough to trigger criminal infringement claims. Anyone can put ads on a website. That, alone, shouldn't shift liability from civil to criminal.

No matter what, this will represent a lawsuit worth watching. I'm always nervous that tough cases make bad law, and I could definitely see how certain aspects of this case could obscure the key issues. It will come as a surprise to no one that I'm greatly troubled by a criminal charge here, but it should worry almost anyone who has a website and has ever embedded videos. I have, for example, frequently embedded YouTube videos on this site -- and some of those videos might have been infringing. On top of that, I make some money from advertising on this site. Does that mean I now face criminal liability? I certainly hope not, but that seems to be the incredibly chilling message that ICE is sending. It immediately makes me question if I can ever embed another video without first getting explicit permission from the copyright holder.

Filed Under: channelsurfing, copyright, criminal, homeland security, ice, infringement

Homeland Security Was Interested In Doing 'Covert' Pedestrian 'Scans' From 30 Feet Away

from the privacy-is-so-over dept

Last year, we wrote a few times about how there was a company selling scanner vans -- based on the same technology used in those airport naked scanners -- that could be used to surreptitiously look into vehicles. Mostly they were being sold to law enforcement, however some of them were being sold to private buyers. Given all this, it should come as little surprise that Homeland Security has been interested in expanded use of such scanning technologies, with a newly released report suggesting it explored greater surveillance with naked scanners -- such as mobile units for special events or for public transportation hubs, as well as "covert" systems that could scan large groups of people without them knowing it. There was even discussion of one system that could scan people from 30 feet away.

To be honest, it's not all that surprising that Homeland Security would explore all of this (and it's a bit of an exaggeration to focus on the TSA as doing this -- which is implied in the link, since it appears to be a wider DHS effort), so I don't think it's as big a deal as EPIC makes it out to be. EPIC tends to over-exaggerate these types of things. The TSA has responded to the story with a sort of carefully worded denial that doesn't really speak to the issue:

"TSA has not tested the advanced imaging technology that is currently used at airports in mass transit environments and does not have plans to do so."

The is a pretty narrowly defined answer. First, it only focuses on the mass transit part, and it also limits the answer to the specific imaging technology used at airports. It does not answer whether or not the TSA has looked at other forms of technology for these kinds of scans. On top of that, it narrowly limits the answer to the TSA, not the wider DHS. Is it really that hard for Homeland Security to give a straight answer? I mean, the idea that it might research these technologies seems perfectly reasonable. Why not just say that, and then be upfront about it?

Filed Under: homeland security, privacy, scans, tsa

ICE Boss: It's Okay To Ignore The Constitution If It's To Protect Companies

from the how-nice-of-them dept

While the folks at Homeland Security keep telling me that they simply cannot speak publicly about the seizure of various domain names -- and specifically the numerous mistakes they've made that appear to clearly violate both the First Amendment and Due Process rules -- it seems they have no problem talking about the domain seizures to folks in the press who don't bother to ask tough questions.

ICE boss John Morton did an interview with Politico, where he trots out a bunch of highly questionable statements about the domain seizures, including claiming that it's all okay for them to do this because they're trying to "protect U.S. industry" rather than "regulate the internet." But that's not the role of Homeland Security or ICE. And there are limits on what ICE is actually allowed to do, and Morton's technically clueless agents seem to have ignored many of those rules.

"We don't have any interest in going after bloggers or discussion boards," he said. "We're not about what is being said by anybody. We're about making sure that the intellectual property laws of the United States, which are clear, are enforced. When somebody spends hundreds of millions of dollars to develop the next movie or a billion dollars to develop the next heart medicine, the innovation and the enterprise that went into that effort is protected as the law provides. It's that simple."

There's so much wrong in that statement that it should be grounds for dismissal. Morton is not representing what has happened, the law or the facts accurately here. He's lying to the American public (and to Politico, who appears to have failed to call him on any of it). First of all, if they don't have any interest in going after bloggers or discussion boards, why did they? Second, if the intellectual property laws of the US are "clear" -- why did ICE not use them and actually get anyone charged with infringement? Third, the laws aren't that clear -- which is why we (normally) have trials to make sure there was actual infringement. If ICE had been willing to let due process play out, it would have avoided embarrassing mistakes, like taking down 84,000 websites because a few may have had illegal content. Or seizing a blog (yes, a blog, despite what he says) that posted links to music elsewhere that was sent by the labels and artists. And, when someone spends all that money to develop something, there are plenty of business models for them to use, and they have every right to use civil laws to go after those who violate their rights. What they shouldn't have is some government agents taking down websites with no due process, seizing plenty of protected speech in the process.

Finally, for Morton to claim "it's that simple," when the law is anything but simple should get the man fired. Seriously. No one who knows anything about the law thinks it's that simple. He shouldn't be in charge of ICE if he thinks that the laws are as simple as he makes out. It's not, and either he knows it and he's lying or he doesn't know it and he's unqualified for the job. Which is it? I figure I'll send these questions to my friendly press contact at Homeland Security, and I imagine the answer will be the same: "I'll have to direct you to the Justice Department on those questions." Because actually responding to American citizens whose rights he seems to have no problem trampling is not in his job description. Helping Hollywood by violating multiple parts of the Constitution is much more fun.

Morton also seems to think there's simply no legal questions in seizing domain names:

"We can seize and forfeit them just like we seize and forfeit bank accounts, houses and vehicles that are used in other crimes," he said. "Any instrument of a crime is subject to our jurisdiction in terms of seizure and forfeit."

Again this is incorrect on a number of levels, and again raises questions about Morton's competence to hold the job he holds. You can seize property, but the case law is pretty clear on the different rules when it comes to seizing speech. And he's never responded to that at all. Because, of course, he cannot.

John Morton seems to think it's fine to be censor-in-chief and to violate multiple parts of the US Constitution, because it protects a few businesses who have failed to adapt their business models. This is a sickening display of the takeover of the American government by corporations.

Filed Under: constitution, domain seizures, homeland security, ice, john morton

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 Won't Even Admit Whether Or Not It Seized Mooo.com, Taking Down 84,000 Innocent Sites

from the transparency-in-government dept

Yesterday, I wrote about how there were many reports, starting over the weekend, claiming that Homeland Security's inept Immigration and Customs Enforcement (ICE) group had once again screwed up the process of seizing domains. However, this time, the mistake appeared to be on a much larger scale. While some other sites have simply assumed that Homeland Security seized the entire mooo.com domain, thereby publicly accusing 84,000 sites (nearly all of which were perfectly legitimate) of trafficking in child porn, we were at least willing to give Homeland Security the benefit of the doubt and question whether it was really involved.

Given that no one seemed to confirm that Homeland Security was involved, I figured I might as well ask. I sent off a quick email to a press contact at Homeland Security, asking a simple question: did Homeland Security seize -- and then unseize -- the mooo.com domain? It seemed like a simple yes or no question, and given that Homeland Security is a part of the Obama administration, which has promised the utmost transparency, I figured the least it could do was provide that simple answer. Instead, the response I got was:

"I need to refer you to DOJ for a response to your question."

This, of course, is not true. The actions were taken by Homeland Security's ICE group. It was Homeland Security that put out the bragging press release about seizing more domains and putting up their "this site trafficked in child porn" graphics. But it can't even answer a simple yes or no question about a specific domain? That's not transparency. It also seems to suggest quite strongly that DHS and ICE did, in fact, screw up royally here.

I responded to the press contact, and pointed out that there is simply no reason that Homeland Security cannot answer this question, and repeated the question, but I have not heard back. I also sent an email to the Justice Department, and have also received no response.

Lots of folks are pointing out the incredibly serious First Amendment concerns brought out by such a seizure. Of course, we've pointed out such concerns with all of the previous domains seized, and people said they were overblown concerns. I'm somewhat stunned that we still had people defending such seizures without any due process, when 84,000 legitimate sites might have taken down, as a result.

And, once again, if there were actual due process, involving an actual adversarial hearing, moves like this would be avoided. On top of that, if Homeland Security wanted to actually go after child pornographers by tracking them down and arresting them, rather than just seizing domains, mistakes like this would be avoided. Of course, that would involve doing real work. And that's something that Homeland Security apparently isn't interested in, from the special agents who have failed massively in their investigations on these various takedowns all the way to the press spokespeople who can't even be straight with the American public when they make a massive First Amendment-violating mistake.

Filed Under: domain names, free speech, homeland security, ice, mooo.com, prior restraint, seizures, transparency

Once Again, Why Homeland Security's Domain Name Seizures Are Almost Certainly Not Legal

from the once-more,-with-feeling dept

Earlier this month, in discussing some of the Homeland Security/ICE domain seizures, Karl put together an excellent comment, going through the legal analysis as to why the domain seizures were almost certainly not legal. Karl is not a lawyer, so I sent the comment to a series of lawyers I know who are very much on top of First Amendment issues, and they came back saying that his post was accurate, so I asked him to turn it into a full post, and here it is. With COICA being brought back, the timing is particularly appropriate.

These seizures are the very definition of prior restraint.

The activities that these sites are doing has never been considered criminal infringement. Remember that "evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright." (17 U.S.C. 506(a)(2)) The state has not met their burden of showing that criminal activity occurred at all.

Moreover, it's pretty hard to claim "willful infringement" when a site has been declared completely legal under its own country's laws -- as is the case with Rojadirecta. If it's infringing, it's at most "innocent infringement," which is in no way a criminal act.

Furthermore, none of these sites are "primary" infringers. To be criminal, they must be considered an accomplice, and that requires much, much more proof than "contributory" or "vicarious" infringement does in tort cases. You must share the primary's actus reus and mens rea -- in layman's terms, you had to actively, intentionally, and directly participate, and moreover you had to know the act was criminal. It's amazingly obvious that this doesn't apply to many of these websites.

Under 17 U.S.C. 512's "safe harbors" provisions, if the sites followed the rules laid out therein, they are not liable for infringement at all, and the only relief available is laid out in 512(j). Nothing in 17 U.S.C. 506 takes those safe harbors away. Even if you wrongly believe it did, obeying the law would (once again) make you an "innocent infringer" at most, thus ineligible for criminal infringement under 506. Yet there was not even an attempt to show that the sites did not follow those rules. And apparently many did.

These seizures were also done ex parte, meaning that the defendants were not given prior notice, and were not given a chance to contest the seizures in a pre-seizure hearing. Nor, for that matter, were they given that chance after the seizures occured.

Fort Wayne Books v. Indiana makes it very clear that an ex parte seizure of potentially protected speech, with the intent to take material out of circulation, is prior restraint:

While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, books or films may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing. The risk of prior restraint, which is the underlying basis for the special Fourth Amendment protection accorded searches for and seizures of First Amendment materials, renders invalid the pretrial seizure here. Even assuming that petitioner's bookstore and its contents are forfeitable when it is proved that they were used in, or derived from, a pattern of violations of the state obscenity laws, the seizure was unconstitutional. Probable cause to believe that there are valid grounds for seizure is insufficient to interrupt the sale of presumptively protected books and films.

Note that even taking the offending material itself out of circulation is prior restraint. These seizures went beyond that, and attempted to take entire websites out of circulation, non-infringing speech and all.

Some rebut with Heller v. New York, but nothing in Heller contradicts Fort Wayne:

A copy of the film was temporarily detained in order to preserve it as evidence. There has been no showing that the seizure of a copy of the film precluded its continued exhibition. Nor, in this case, did temporary restraint in itself "become a form of censorship," even making the doubtful assumption that no other copies of the film existed. [Emphasis in original.]

In other words, Heller only applies when you seize a copy of the work, you do it to preserve it as evidence, and it does not prevent public access to the work itself.

Moreover, Heller quotes United States v. Thirty-seven Photographs, which lays out three requirements for ex parte seizures:

(1) there must be assurance, 'by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film'; (2) '[a]ny restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution'; and (3) 'the procedure must also assure a prompt final judicial decision' to minimize the impact of possibly erroneous administrative action. [Emphasis mine.]

These seizures fail every single one of those requirements. Those requirements were put in place "so that administrative delay does not in itself become a form of censorship." This is exactly what is happening here. Forfeiture proceedings for the first round of seizures were only initiated six months after the seizures occurred. The majority of sites still have not had a chance to contest them, and some have only recently been contacted by the government, months after the domains were seized.

Others may rebut with Arcara v. Cloud Books, in which an adult bookstore was closed down because of prostitution occuring on its premises. The usual claim is that "the First Amendment is no shield against criminal activity." But Arcara was only constitutional because "the sexual activity carried on in this case manifests absolutely no element of protected expression." Furthermore, "We have also applied First Amendment scrutiny to some statutes which, although directed at activity with no expressive component, impose a disproportionate burden upon those engaged in protected First Amendment activities."

Copyright infringement does, in fact, have "an element of protected expression" -- that is, a First Amendment defense can be raised (it need not be raised successfully). For that reason alone, Arcara does not apply. But even if the activity was not itself protected, the mere fact that it imposes a "disproportionate burden" upon free expression, disqualifies it from Arcara exemptions. Arcara absolutely, positively does not apply to these seizures.

In case you're wondering -- no, obscenity is not any more "presumptively protected" than copyright infringement is. (Hint: child pornography is a subset of "obscenity.") The same seizure rules (18 U.S.C. 46) apply to both; First Amendment challenges can be raised to both; obscenity, unlike infringement, is always a criminal offense; and the punishment for obscenity is about the same as for criminal infringement. (It's all in 18 U.S.C. 71.)

It's also a dodge to claim that domain names are not "presumptively protected speech." First of all, that's not true. Name.Space v. Network Solutions ruled that general top-level domains (just the .com, .net, etc parts) are not protected, solely because they cannot possibly be expressive. When the domain name can possibly be expressive -- such as when it includes the full creative URL -- it is presumptively protected speech, and First Amendment concerns apply. (See: every single "sucks site" case, and the one about Glenn Beck raping and murdering a young girl in 1990.)

But it's even more of a dodge because the domain names are not even allegedly infringing. They were seized solely to prevent the public from accessing the websites themselves. So the TLDs' status as "protected" is completely immaterial; it only matters whether the websites themselves are possibly protected expression.

And, of course, they are. The majority of the speech on some sites (forums, blog posts, comments, etc) is absolutely, 100% protected speech.

Now, about those seizure laws. 17 U.S.C. 506(b) references 18 U.S.C. 2323, which allows the seizing of any "article, the making or trafficking of which" is criminal infringement. Compare this with the ennumerated articles that can be impounded from 17 U.S.C. 503: "all copies or phonorecords," "all plates, molds, matrices, masters, tapes, film negatives, or other articles," and "records documenting the manufacture, sale, or receipt." These laws were clearly to be used for counterfeit goods, not file sharing.

According to 18 U.S.C. 2323(a)(2), the actual procedures for criminal seizure are in 18 U.S.C. 46. There are three sections dealing with civil forfeiture, none of which seem particularly appropriate. It seems that judicial forfeiture is covered exclusively in 18 U.S.C. 985. 985(d) states:ates:

Real property may be seized prior to the entry of an order of forfeiture if--
(A) the Government notifies the court that it intends to seize the property before trial; and
(B) the court--
(i) issues a notice of application for warrant, causes the notice to be served on the property owner and posted on the property, and conducts a hearing in which the property owner has a meaningful opportunity to be heard; or
(ii) makes an ex parte determination that there is probable cause for the forfeiture and that there are exigent circumstances that permit the Government to seize the property without prior notice and an opportunity for the property owner to be heard.
(2) For purposes of paragraph (1)(B)(ii), to establish exigent circumstances, the Government shall show that less restrictive measures such as a lis pendens, restraining order, or bond would not suffice to protect the Government's interests in preventing the sale, destruction, or continued unlawful use of the real property. [Emphasis mine.]

In other words, even with counterfeit goods, you're supposed to allow an adversarial hearing before seizing anything. An ex parte seizure order is the "nuclear option," to be used only when other methods are insufficient. The affidavits claim that these were indeed "exigent circumstances," but that claim is completely laughable on its face -- especially since the sites were operational for years at the same domain name, without risk of "destruction" or "sale," and the seizures did not preserve (or even help gather) any evidence whatsoever. And no, "continued unlawful use" is not an "exigent circumstance" when that "use" involves potentially protected expression, or, for that matter, when the use is not necessarily unlawful in the first place.

...Now, I'm not a lawyer, and I'm only repeating what I've been able to dig up. You can possibly disagree with some of the above. But in order for these seizures to be legal, you have to disagree with all of it. I'm sure some here will try (and many more will just call me a "freetard" or "pro-piracy" or "LOL!" at me). But no matter how you slice it, the legality of these seizures is not obvious. It's not even likely.

The more I read the law, the more convinced I become that the seizures were a repulsive abuse of power. ICE did this deliberately to route around safe harbors and the First Amendment. They had no intent of filing criminal charges and were hoping the domain owners would be scared into silence. It is prior restraint, and it is censorship, plain and simple.

Filed Under: censorship, homeland security, ice, legality, seizures