We've already covered the bizarre story of Homeland Security effectively working for Disney in seizing some domains of sites that were used to file share movies (way, way, way outside of Homeland Security's mandate), and covered the sneaky attempt to defend those moves by conflating copyright infringement online with counterfeit drugs being sold online. It's also still not clear that Homeland Security even has the legal right to seize those domains as it did. Now, one of those sites targeted by Homeland Security, NinjaVideo is trying to fight back, and appears to be trying to crowdsource a legal defense fund to handle the fight. I honestly don't know anything about NinjaVideo or what the site did, so I have no idea if it has a strong or weak case. I also do wonder how many people will really step up and support the site -- though if many do it could make for an interesting case study on its own as well. Either way, it's worth watching to see how successful the site is in raising money for its fight -- and then in the legal fight itself.
We already wrote about the recent Congressional committee hearings on intellectual property enforcement, where IP Czar Victoria Espinel blamed China. However, there were other speakers there as well, and perhaps the most interesting was from John Morton, the assistant secretary of Homeland Security's Immigration & Customs Enforcement (ICE) division -- the group that recently started working for Disney and seized a bunch of domains using questionable legal theories. We're still trying to figure out what the hell immigration and customs enforcement has to do with internet file sharing, and here was a chance to set the record straight.
In his opening remarks to the event, Rep. Howard Berman (who has been called the Representative from Disney, so it fits that he's happy that ICE now works for Disney) highlighted how this operation was "innovative thinking." (pdf):
Most recently, I was interested to read about the initiative
undertaken by Immigration and Customs Enforcement, or ICE, to seize the domain names of
Web sites that were unlawfully offering first-run movies. That is exactly the kind of innovative
thinking the Vice President called for -- and I am curious to hear from Assistant Secretary Morton
on how it came about, the obstacles that you faced, and how we can scale Operation "In Our
Sites" to enterprises that facilitate the theft of music, books and other products prone to
counterfeiting.
Note the sly trick (lie) from Berman here: suggesting that copyright infringement and counterfeiting are the same thing. You'll see this quite frequently these days (hello, ACTA), because it's easier to show actual problems from counterfeiting -- and nearly impossible to show problems from infringement. So by simply pretending they're the same, everyone can pretend that the "harm" from infringement is much worse. Note carefully that whenever anyone talks about the specific "harm," it always relates to counterfeiting. But when they talk about the "problem" they talk about infringement. It's amazing that no one calls them on this stuff.
Morton's talk was basically anchored with this kind of deception. You can read the whole thing here (pdf) or the embedded version below:
Let's dig into some specifics:
Simply put, American business is under assault from those who pirate copyrighted material and produce counterfeit trademarked goods.
And, we're off, with a simple conflation of two totally different things. Counterfeiting and copyright infringement are not the same at all.
Criminals are stealing American ideas and products and selling them over the Internet, in flea markets, in legitimate retail outlets and elsewhere. From counterfeit pharmaceuticals and electronics, to pirated movies, music, and software, these crooks are undermining the U.S. economy and jeopardizing public safety. American jobs are being lost, American innovation is being diluted and the public health and safety of Americans is at risk -- and organized criminal enterprises are profiting from their increasing involvement in IP theft.
Except, of course, you cannot "steal" ideas. And notice how the paragraph moves seamlessly back and forth between counterfeit goods and infringement. If infringement on the internet is the real problem, then why are they talking about "health and safety" which has nothing to do with people watching movies online. Furthermore, the whole "selling them over the Internet" may apply to counterfeit goods, but I thought the whole problem with content online is that people aren't "selling" it but giving it away for free? Why conflate the two unless your sole purpose is to confuse?
Finally, the GAO just dinged the government for buying into bogus industry claims about "lost jobs" and diluted innovation. So why is a government official repeating them?
Intellectual property rights are intended to discourage thieves from selling cheap imitations of products, which are often far less safe or reliable than the original products.
Please, let's be clear: Trademark law is designed to prevent consumer confusion over such imitations. Copyright law is entirely different and is designed to create incentives that "promote the progress of science." But, again, Morton is carefully conflating the two, because it hides the weakness of the idea that Homeland Security has any role in dealing with internet file sharing.
Intellectual property rights also protect the actor, director, writer, musician and artist from having a movie, manuscript, song or design illegally sold by someone who had no part in the artistry of creating it.
While true to some extent, again, "sold" over the internet? Wasn't the whole problem that all this stuff is available for free?
This increase in access to the Internet, while of great benefit for global communication and commerce, represents a very real threat to America's film and music industries. Their products are extremely susceptible to Internet piracy, especially as bandwidth increases. As a result of this growing concern, ICE counterfeiting and piracy investigations are increasingly directed to web-based criminals.
You know, cars represented a very real threat to America's horse and buggy industries. Would customs officials have blocked automobile manufacturing as well? The job of Homeland Security is not to pick which technology wins or to protect the business models of some legacy companies within an industry. And it's not actually a "threat." It's an opportunity for those who know how to embrace it. Remember, the movie industry continues to do quite well -- and it was the one who claimed that the DVD business would kill it. If this were a few decades back, would ICE be blocking all DVD imports because it represented a "a very real threat to America's film industry"? After all, that's exactly what the industry claimed, just as they are doing now. Why does Morton and ICE simply believe it this time when the industry has been wrong every single time about technology threats?
ICE has a legacy of engagement in IP theft enforcement -- stretching from our past years as U.S. Customs Service investigators to our present role as Homeland Security investigators. ICE is a leading agency in the investigation of criminal intellectual property violations involving the illegal production, smuggling, and distribution of counterfeit and pirated products, as well as money laundering violations.
Sure, the role is supposed to be about blocking counterfeit goods at the border. That's got nothing to do with file sharing online, so why dump it in there?
Representatives from the Motion Picture Association of America (MPAA) and RIAA assisted participating customs authorities with focused training, targeting and analysis...
Once again, we see biased industry players "training" government officials. Given the "training" we've seen both the MPAA and RIAA create for schools, why does it seem likely that they leave out certain important things (fair use, anyone?)?
ICE is an active member of the U.S. delegation negotiating the Anti-Counterfeiting Trade Agreement (ACTA). The goal of ACTA is to work with other countries interested in promoting strong enforcement of IPR. ACTA aims to strengthen legal frameworks to bridge existing gaps between laws and dedicated enforcement....
Someone's off message. Remember, ACTA isn't supposed to be about changing legal frameworks or laws.
Last month, the IPR Center launched Operation In Our Sites, a new initiative aimed at Internet counterfeiting and piracy.
Please. Be honest: it was aimed at piracy. It had nothing whatsoever to do with counterfeiting.
On June 30, more than 75 ICE agents participated in this enforcement action, which resulted in the seizure of assets from 15 bank, PayPal, investment, and advertising accounts.
And, um, also raising all sorts of legal questions about Homeland Security's right to just seize domains. On top of that, as many are starting to point out, just because you seize the domain name, it doesn't mean you take down the actual site. And, all this will really do is drive file sharers further underground.
Interestingly, as the new owners of the domain name, ICE has been able to determine the number of visitors these sites have received since seizures. Within two days of ICE's enforcement action against these pirating web sites, over 1.7 million visitors saw the banner. This number is more than the daily total of "hits" the sites were receiving when they offered pirated movies and music. In other words, the government's warning banners have "gone viral," and Internet users are actually seeking the web site out to view the banners themselves. The resulting public education about pirating is a significant result of this enforcement operation.
You might want to ask those visitors what they learned. Because many learned that Homeland Security is focused on stopping file sharing, rather than important things like stopping terrorism. People who are visiting those sites aren't suddenly saying "hey, wow, now I know it's illegal and I'll stop."
The IPR Center recognizes that law enforcement cannot fight IP theft alone and we look to partner with private industry in our efforts. In a market economy, no one has a greater incentive for protecting intellectual property rights than private industry. Companies want to protect their investments in research, development, manufacturing, sales, marketing and product distribution.
No. They want to protect their profits. They want to protect the monopoly rents guaranteed by the government. It's really quite scary how Homeland Security admits that it's protecting the business models of certain industries over those of other industries. This is not the role Homeland Security is supposed to be playing.
I have no problem with Homeland Security stopping legitimately harmful or faked products at the border. That makes perfect sense. But no one has explained what any of that has to do with seizing domains from file sharing sites. Conflating trademark infringement and copyright infringement, and acting as if they're the same thing, while highlighting the harm of fake drugs and then lumping in downloaded music and movies is extremely disingenuous. It's too bad our tax dollars are being used to prop up companies who refuse to adapt, and the lengths to which government employees will go to, in an effort to rationalize such blatant extension of their mandate in order to help out key companies.
There was a lot of attention paid last week to Homeland Security's ICE (Immigration and Customs Enforcement) decision to shut down a bunch of movie file sharing sites. There were lots of questions about the action. We focused on the incredibly troubling fact that the whole thing appeared to be coordinated by Disney, a private corporation. Others, quite reasonably questioned how this is a Homeland Security (or ICE) issue at all. But, lost in much of the discussion was another important point. Beyond just raiding the operators of many of these sites, Homeland Security also seized the domains of the sites, though it's not at all clear under what legal authority they did so, and there was no due process involved at all:
The report did not cite under what law the domain names were seized. As far as I know there is no federal law that allows the seizure of domain names. That of course is the troubling part. Although I have no love for sites that allow the distribution of protected works for free, when the federal government starts making up their own remedies for violation of laws, its a problem. Moreover all that happened here was a claim by the government of improper conduct by the site. There does not appear to been a hearing where any of the domain owners got notice or what you would call due process, which is an opportunity to defend themselves prior to the domain seizure
This reminds many folks of the still ongoing legal dispute in Kentucky over whether or not the governor there can just seize the domains of certain gambling-related websites.
TorrentFreak has an anonymously-sourced (so, take that for what it's worth...) story, suggesting that ICANN was involved in the domain name seizure of these websites, using technicalities in how those sites were registered to take back the domains and hand them over to the US government.
As TorrentFreak notes, this seems to open a huge Pandora's box of potential problems, in terms of what the US government and Homeland Security (at the behest of Disney) might seize next, without any due process. What about some more well-known sites, like The Pirate Bay's domain or MegaUpload? According to the (again, anonymously sourced...) report on TorrentFreak, US officials looked into seizing both of those as well, but realized doing so would likely create other diplomatic and PR-related issues:
Shockingly, TorrentFreak was informed that wheels were also set in motion to seize The Pirate Bay domain. But for reasons that remain unclear that didn't come to pass. Our source believes that the US authorities would've had to contact the Swedish authorities on the matter first, but that since there is already an unfinished criminal process against the site, the time was not considered right. There is an implication, however, that patience won't last forever and may run out after the founders' upcoming court appeal.
Another site in the cross hairs appears to be MegaUpload. Although a domain seizure was suggested, it now seems that another route has been taken, at least for now. We have also been informed by other sources that further sites are being watched although it proved impossible to discover their names.
Given the anonymous sourcing, it's worth taking the reports with a grain of salt, though I wouldn't be surprised to find out that the possibility of seizing the domains was at least explored. If I had to guess, the possibility of a PR nightmare was probably what kept those plans on the drawing board. It was easy to step in and seize the relatively little known domains that they did. In fact, very few of the stories focused on the seizure of the domains themselves. If it had been a major site, much more attention and legal scrutiny would have been quickly applied to the question of what legal authority does Homeland Security have to seize domains.
However, now that the dust is settling on the Disney-directed bust, it does seem like an important question for Homeland Security officials to answer. On what basis can they seize domains and what role did ICANN play in those seizures?
Well, here we go. Remember how, a few months back, we noted how odd it was that the Justice Department (which, of course, employs many former RIAA/MPAA/BSA lawyers) was designating a special task force to fight copyright infringement? After all, copyright infringement is mostly a civil issue, between two private parties. For years, however, the entertainment industry has been working hard to convince the government to act as its own private police force, and following a totally one-sided "summit" with Joe Biden (who recently claimed that infringement is no different than doing a smash and grab at Tiffany's), suddenly the feds had a special IP task force... at the same time that it was downgrading the priority of crimes that cause actual harm, such as identity fraud.
Now, it looks like law enforcement isn't even trying to hide the fact that they're taking orders from Hollywood. Dark Helmet points us to the news that Homeland Security proudly announced raids on nine different movie sites, which they accuse of infringing on copyrights. But what's most interesting is where the announcements about these raids happened: at Disney. And who else was there on stage? Execs from other studios. Yup, Homeland Security isn't even trying to make the slightest effort to hide the fact that it now works for corporate interests. It will announce legal activity from the companies, which stand to benefit the most from such activity.
Imagine if the FTC announced plans to charge Google with antitrust from Microsoft's offices? With execs from Yahoo and Apple on stage. Wouldn't people cry foul?
Not only that, but the guy in charge of the raids blatantly admits that it's now a homeland security priority to protect movie studio interests:
The head of ICE [Immigration and Customs Enforcement], John Morton, says that the number of illegal movie sites is dramatically rising both in the U.S. and abroad, and organized crime is behind some of them. ICE is putting movie piracy front and center in this new initiative, by making its first actions to protect the movie studios' intellectual property.
What does customs have to do with a domestic dispute over civil copyright infringement? And why are Homeland Security officials so closely involved with a few Hollywood Studios that they're not just protecting their business models, but also announcing these efforts from the studios' own offices?
I don't know anything about these sites that were shut down. I've never heard of any of them, but they're nine out of hundreds, if not thousands. It won't do anything to actually help Disney or these other studios. Users will quickly shift elsewhere. The content will still get released just as quickly.
The claims that these sites were run by "organized crime" could very well be true, but I'd like to see some actual evidence on that. It's a common refrain from the industry, but no actual proof has been presented. At best they've shown that some DVD counterfeiting operations have some mob ties, but that's not the same thing. Note that in the announcement no actual evidence of organized crime links were provided.
In a separate article, US Attorney Preet Bharara is quoted as saying that the government took these actions because "copyright infringement translates into lost jobs." Never mind the fact that the GAO just pointed out that such claims are highly questionable (especially the ones from the MPAA -- who won't provide their methodology), this raises a really serious question about government interference into private markets. The government's role is not to protect industries from losing jobs. It never has been. Otherwise it would have "raided" car companies for making horse buggies obsolete. Using that as justification has no legal basis whatsoever, and is really a very disturbing claim.
The whole thing appears to be a gross misuse of government resources to protect a few movie studios, which are unwilling to adapt to a changing market place. People should be outraged over such a misuse of government powers, but because these are "pirate" sites, everyone will look the other way.
Slashdot points us to the news that the ACLU is looking to challenge Homeland Security's policies that it has pretty free reign in searching your laptop at the border. Now, to date, the courts have said that this is perfectly legal, so it's not clear what is "new" that the ACLU hopes to prove. However, last year, after revealing that the new administration still stood by these border computer searches, it also revealed some data on laptop searches, suggesting they are quite rare -- but do still happen. However, the ACLU is seeking people whose laptops were searched, but that looks like a pretty small number of people. While I agree that these searches seem quite questionable for a variety of reasons, I just don't see this lawsuit being effective.
With the failed attempted terrorist attack last week, there has been a tremendous amount of confusion and changing stories concerning airline security. What was especially odd was that there were so many conflicting reports about what the TSA was requiring that it really made the very concept of flying a total pain. There were some reports saying that no carry on baggage was allowed and other reports saying no electronics were allowed. Then there were the reports that you could carry on one bag, but wouldn't be able to leave your seat in the last hour of the flight or have anything (anything at all) on your lap during that hour. Every flight seemed to be different and the TSA was silent for a few days, before finally issuing a vague "guidance" press release that didn't really answer any questions. Basically, the TSA said that it was changing rules constantly. One supposes that the idea was to completely vary the rules so that no "terrorist" could prepare for them and get around them, and I actually can see some merit in that, conceptually. But from a travelers' perspective, it's ridiculous. You simply can't plan ahead with any sense of reason.
And since the TSA was so quiet and/or vague, there were a ton of people searching for information. Even the NY Times was relying on info found on airline websites rather than the TSA itself. So it was of little surprise that there would be plenty of demand for anyone to share any info that they knew -- not for any nefarious purpose, but just so regular travelers could properly prepare for their trip.
Among those who found and posted such information was blogger/reporter and travel expert Christopher Elliott, who regularly blogs about travel issues. He posted the details of a TSA order requiring pat-downs of all passengers on international inbound flights. The order that he posted had been sent to US Airways employees, and seemed like a reasonable bit of information that people would probably like to know about, so it's no surprise that Elliott blogged about it. But last night, Elliott received a surprising knock on the door from a Federal Agent with a subpoena demanding he hand over the details of where he received the info on the pat down procedure (thanks to Rob Hyndman who pointed me to an account of this incident).
Now, the argument in favor of this action is that these sorts of security procedures are probably supposed to be kept quiet (again, the idea would be to throw off any terrorist), but if you actually think about this, it doesn't make any sense. First, it wouldn't take long at all for reports of universal pre-boarding pat downs to be spread around. After all, thousands of people get on planes to fly to the US every day. In fact, among the many stories I heard, the universal pat down story was among them. So it's not like it's actually a secret. It's quite clear from what's being done. Second, if the TSA's security plan is based on keeping information like this "secret" (even if it's made obvious by their actions), then we're in even more trouble than I thought. It's security through pretend obscurity. It's ostrich-level security theater. It's security theater where the idea is that if the TSA pretends no one knows what's actually happening, then it can assume that no one knows what the procedures really are for airport security.
Instead, the whole thing (once again) demonstrates how silly the TSA security procedures are. And, oh yeah, rather than sending federal agents to issue subpoenas to folks like Elliott to figure out how he got the security procedures, shouldn't Homeland Security be spending more time tracking terrorists and coming up with plans that actually make us safer? What good is it engaging in a witch hunt over who passed on the obvious info that people get patted down before they board a US-bound flight?
Update: Wired has details of another blogger who received a similar visit, that was a lot less friendly (lots of threats involved) named Steven Frischling. Frischling cooperated, and they went through his phone -- even calling his mom, and then wanted to get an image of his hard drive. When they had trouble making the image, they ended up taking his laptop. I'm still confused as to how this makes anyone safer.
It was rumored recently that some politicians were going to investigate Wikileaks for some leaked documents that were posted there. The details weren't clear, and I was hoping something was lost in the translation, and they meant that the politicians would be investigating the leaks not the site Wikileaks for posting it. No such luck apparently. Three Congressional Reps have apparently asked Homeland Security what can be done about sites that post leaked documents, including not just Wikileaks, but Cryptome as well. In the letter to Homeland Security, they basically suggest that if needed, they'll put forth legislation that would make reposting such content illegal, which could create one hell of a First Amendment legal battle at some point. Either way, these politicians are focused on the wrong things. The problems aren't these sites, which are just service providers for the information. The problems are the leaks of info themselves.
The Department of Homeland Security has pushed hard for the past few years to make sure it retains the right to search your laptop at the border with no real limitations. It is, indeed, (as defenders of this policy always like to point out) established law that the border is not in the country, so Constitutional 4th Amendment rights do not apply. That still doesn't make it right. I, like many others, would not have a problem with searches due to probable cause. Nor do we have any real problem with searches of physical luggage at the border. But a blank slate, seems like a bit much -- for a few reasons. First, the purpose of a border search is to see what you're bringing into the country. But, when it comes to digital data, no one's bringing it across the border to get it into the country. You could just send it over any number of internet protocols to get it into the country without using a laptop. So, the very rationale doesn't make sense. Second, when people travel, they specifically pick and choose what physical goods to put into their luggage. With a computer, the situation is the opposite. You automatically bring everything (including, potentially access to remote drives).
One big question hanging over all of this, however, was how often such searches took place. Thomas O'Toole alerts us to a new DHS report that finally reveals the numbers -- and, it's at least marginally good news: these sorts of searches happen very rarely. That's a good thing and suggests that the policy isn't widely abused:
Of the more than 144 million travelers that arrived at U.S. ports of entry between Oct. 1, 2008 and May 5, 2009, searches of electronic media were conducted on 1,947 of them, the DHS said.
Of this number, 696 searches were performed on laptop computers, the DHS said. Even here, not all of the laptops received an "in-depth" search of the device, the report states. A search sometimes may have been as simple as turning on a device to ensure that it was what it purported to be. U.S. Customs and Border Protection agents conducted "in-depth" searches on 40 laptops, but the report did not describe what an in-depth search entailed.
I'm certainly happy to see that such a policy is used so rarely, but I still question why it should be used at all.
There's been plenty of concern over the past few years with regards to Homeland Security's claims that it has the right to inspect the contents of your laptop at the border, even without any probable cause. While it may be well established that the 4th Amendment doesn't apply until you're actually in the country, that doesn't mean there aren't some serious questions raised. I, like many others, have no problem with border searches of actual physical containers and luggage at the border. That makes perfect sense, because it's physical goods that you're purposely trying to bring directly into the country. You packed them with the specific idea of bringing them into the country.
But stuff on your laptop is different in two very important ways:
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.
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.
Thus, it makes little sense for border control to search the contents of your laptop other than if the gov't wants a random "free pass" at checking out some content about you. DHS' insistence that it needed the right to search laptops at the border made little sense, and some of our elected officials pushed out bills to curb such border searches, though none have passed.
Instead, the new head of DHS has "revised" the rules for laptop searches, but they're only slightly better in that the old rules were "anything goes," while the new rules are "we're still searching laptops, but we have a few rules." The main components of the new rules are that you're allowed to be present in the same room as your laptop, phone or device as it's being searched -- but not necessarily to see what border patrol is doing. Also, they can't keep your laptop for more than five days, which seems pretty damn long to me. Though, as some note, this basically means that you should make sure any encryption on your laptop takes more than five days to crack.
DHS boss Janet Napolitano's reasoning for the searches is hardly compelling:
"Keeping Americans safe in an increasingly digital world depends on our ability to lawfully screen materials entering the United States,"
Um... right, but, again, the contents of the a computer laptop can easily enter the United States via the internet with no border control process whatsoever. The whole claim that this has anything to do with screening materials entering the US is totally bogus.
On top of this, the other thing that's not at all clear is how far the "search" can go. With a growing number of "cloud" based services in use, many of which act as if they're local, can the border patrol search those as well? For example, I use Jungledisk, which gives me a virtual drive that shows up in my file system as if it were a local hard drive, even though it's hosted in some data center somewhere. It looks like a local drive... but it's not actually on my laptop. Would border patrol have the right to search that, even though the contents of that drive are not actually traveling across the border?
BullJustin writes in to alert us to the news that the Department of Homeland Security is cutting subscriptions to paper newspapers and magazines, cutting $47,160 from the budget over the next two years. Of course, for Homeland Security that's a tiny drop in the bucket (hell, it's not even that big). But, the writeup (somewhat tongue in cheek) suggests that this is unfair to newspapers who are "hurting enough financially" already. Of course, on the flip side, I'd think most people agree that not wasting taxpayer money on content that people are probably reading for free online anyway, is a good thing...
