Did Homeland Security Seize... And Then Unseize... A Dynamic DNS Domain?

from the cluelessness-knows-no-bounds dept

Over the weekend, we started getting a bunch of reports from folks claiming that the dynamic DNS service afraid.org had been seized in the latest DHS/ICE domain seizures, and that all of the sites associated with afraid.org had been replaced with a notice that they had been seized over child porn claims. The main site involved was mooo.com. If you're unfamiliar with the way these dynamic DNS services work, they basically let you put a permanent URL, often using a subdomain like putsomesubdomainhere.mooo.com, and then you point it at whatever machine is actually hosting your content. For some folks and some projects, it's easier than getting your own full URL. But, of course, as a service, it can point to just about any kind of content. Remember, afraid isn't hosting any of this stuff. It's basically just acting as a directory.

Despite multiple reports, and various blog posts from individuals really pissed off that ICE had accused them of trafficking in child porn, we didn't write about it earlier for a few reasons. First off, with each of the past few ICE seizures, various hucksters have claimed that their domains were seized as well, and it later turns out to not be true at all. In the last round, I ended up talking with a guy who claimed his domain was seized for a few days, before realizing he was full of it. Second, afraid.org and mooo.com came back online a day and a half later, with the admin claiming that the domain was "suspended at the registrar level", but not mentioning DHS/ICE at all. I emailed afraid.org's admin asking him for details a few days ago, and heard absolutely nothing in response.

So despite more and more people bringing it up in our comments, I was ready to let it drop. However, late yesterday, Homeland Security and ICE did officially announced more domain seizures, but these were different than the last four rounds we've spoken about -- which were a part of "Operation in Our Sites," and was focused on IP violations. Instead, this is called "Operation Protect Our Children," and was focused on child porn. Yes, Homeland Security is pulling out the old "protect the children!" line to defend domain seizures.

Unlike the "In Our Sites" announcements, however, with "Protect Our Children," DHS didn't actually name the domains. So, right now I'm just not sure if mooo.com was really seized... and then given back (which would be a surprise, if true). Since I'm at a dead end in the normal channels, I figured I'd just put the story out here, and see if we can dig up any proof either way. Was mooo.com really seized as part of this program... and if so, was it really given back? If so, why? Did ICE realize that seizing a dynamic DNS service that links to a ton of perfectly legitimate content would clearly push it over the line on prior restraint? Remember, nearly all of the "prior restraint" cases we've discussed as examples of why the domain seizures are unconstitutional involve pornographic materials. And, one of the counterpoints that people have argued is that those rulings only apply to porn, but not copyright (no one has a good explanation of why that would be, but we'll leave that aside).

So, what happened here? Did DHS/ICE demonstrate even more technical cluelessness in seizing a dynamic DNS directory that linked to tons of perfectly legit content, and then realize its mistake and give it back? Or were the reports of mooo.com's seizure overblown? Or did something else happen altogether?

Filed Under: domain names, porn, seizures

UK Law Enforcement Also Looking To Be Able To Seize Domains

from the it's-spreading... dept

Ah, the power of censorship. It appears that some other countries may be jealous of Homeland Security getting to seize all those domain names, or the proposed COICA law that would allow even more domain seizures in the US. drew points out that, over in the UK, law enforcement is also asking for official power to force Nominet to shut down domains that it claims were "used by criminals." That seems pretty broad. Lots of domains are "used by criminals" in one way or another, does that mean they should automatically have the right to shut those domains down? And with both the US and the UK looking for such rights, won't more and more countries now start to follow? It certainly makes you wonder about the impact of the overall internet, when various countries can just seek to shut down various domains without any trial determination.

Filed Under: domain names, seized, uk

US Gov't Interest In Domain Name Veto Represents Yet Another PR Nightmare

from the does-no-one-think-about-this-stuff dept

Last week, someone had sent over a document purporting to be from the Commerce Department advocating that ICANN's new open top level domain plan include a "government veto," that would let various government agencies seek to block a particular TLD. We didn't write about it at the time, because I couldn't confirm that it was real, and the whole thing seemed so ridiculous and short-sighted I didn't think that it could have really come out of the Commerce Department. Lesson learned: never underestimate the Commerce Department's ability to make really bad decisions.

It appears that it's now been confirmed that the Commerce Department really does want veto power for any government over a particular TLD. The reports suggest that there's concern about TLD's like ".gay" which some countries may not like, and some of the fear is driven by the .xxx debacle, when ICANN initially approved a .xxx domain, thinking it would be a "redlight district" for porn, but then after public outcry, the US government pressured ICANN to change its mind. This was especially funny because no one seemed sure whether or not .xxx was good or bad for kids. There were some people who thought .xxx would be "good" for kids by creating an area that was easy to rope off and keep kids out of. Others argued that .xxx was bad because it admitted that porn existed (or something like that).

The whole thing was a complete mess, and now the US government seems to want to repeat that process around the world.

Here's why this is about as pointless as can be: already anyone can register any URL within the existing TLDs. No government has any veto power over the part that comes before the TLD. So what difference does it make to include a veto over what comes after the TLD. In what world does it make sense to say that "gaysex.com" is okay but "sex.gay" is not? Why does the government care?

Even worse, this whole thing creates a massive unnecessary PR nightmare for the administration. Already there are concerns around the world that ICANN -- a quasi-public/private entity -- is too much in the pocket of the US government. The Commerce Department has always tried to deny this, insisting that ICANN had autonomy. And yet... in pushing for this veto power, it's admitting that it actually does want to take greater control over ICANN... and to give other governments some veto power as well.

Filed Under: commerce department, domain names, tlds, veto
Companies: icann

Homeland Security Seizes Spanish Domain Name That Had Already Been Declared Legal

from the international-incident dept

It appears that Homeland Security's Immigration and Customs Enforcement (ICE) division, and their incredibly sloppy domain seizure operations, have moved on to the next phase -- as was promised by both ICE boss, John Morton, and IP Enforcement Coordinator, Victoria Espinel. The timing on this one is particularly bizarre -- and politically stupid.

That's because the the domain seizure is for the Spanish streaming site Rojadirecta. Yes, ICE seized the domain name of a foreign company. And it gets worse. Rojadirecta is not just some fly-by-night operation run out of someone's basement or something. It's run by a legitimate company in Spain, and the site's legality has been tested in the Spanish courts... and the site was declared legal. The court noted that since Rojadirecta does not host any material itself, it does not infringe.

So, a full-on trial and legal process that took three years in a foreign country, and involved a series of appeals leading to a final judgment.... all totally ignored by a bunch of US customs agents.

You might think some folks in Spain would have a pretty serious issue with this move.

And the timing is especially ridiculous, given that the US has been pushing very, very hard for Spain to implement a new copyright law, driven in large part by Hollywood. With many in Spain already furious about US meddling in their own copyright laws, I can't imagine that having US customs agents reaching across the Atlantic to just out and out seize a Spanish company's domain name is going to go over very well.

Imagine if a Spanish law enforcement agency did that to a US company? How quickly would we see American politicians screaming about this "international incident." Yet, here we have Homeland Security reaching out to seize the domain name of a foreign company that has been explicitly declared legal, after going through a lengthy trial and appeals process in its native country. And, in typical Homeland Security fashion, no one bothered to contact the company and let them know or express its concerns. Instead, it just seized the domain.

I would imagine that doing so may upset Spanish citizenry even more than the attempt to rewrite copyright laws in Hollywood's favor.

And of course, it appears that, despite the serious questions raised about the last domain seizures, in particular of blogs with substantial non-infringing uses, ICE has also seized another blog, called StrikeGently, which appears to have included lots of other content. Yes, it did also include some links to downloads hosted on other sites, but did not host any content directly itself, and appears to have included plenty of other content beyond the links to downloads. Once again, no one is saying that the site is clearly legal. It may, in fact, be liable for inducement. However, that's something that's supposed to be determined at trial, and not after the government steps in with no notice whatsoever and takes the domain name away.

Apparently, Homeland Security and ICE have decided that the mistakes it made last time are so minor that it will repeat them again and again, even if it involves shutting down protected speech and interfering in international relations.

Filed Under: copyright, domain names, homeland security, ice, seizures, spain
Companies: rojadirecta

Previously Chatty Homeland Security Clams Up After Errors In Domain Seizures Pop Up

from the no-comment dept

As you're probably aware, we've been covering the many serious legal questions raised by Homeland Security's decision to use its Immigration and Customs Enforcement (ICE) group to seize a bunch of domain names. As we've reported, the basis for the domain name seizures was full of serious technical and legal errors, which called into question the expertise of ICE on this subject. This was made even worse when details revealed that many of the "examples" used to prove infringement were sent by representatives of the copyright holders.

Right after the domain name seizures, we noted that the Assistant Deputy Director for ICE, Erik Barnett, was perfectly happy to go on the record defending the seizures -- brushing off the concerns many people had about the process. He admitted, point blank, that ICE relied heavily on the very biased claims of industry insiders as the basis for what sites to target, and suggested that there were no serious due process problems with taking down entire websites prior to any adversarial trial.

Of course, this was all before the affidavit had been released, and the myriad errors became clear. So I asked Erik if he would respond to a short list of questions concerning the process and the specific errors made, figuring that since he had been so happy to speak out about these domain seizures in the past, he would be able to answer those questions, and perhaps put some of our concerns to rest. While I emailed Erik directly, I instead heard back from Homeland Security's "Office of Public Affairs," which noted that Homeland Security will not comment on "an ongoing investigation before court." Except, that's blatantly false, since Erik was already on the record speaking to other publications.

Either way, I responded and said I understood not being able to comment on ongoing issues (I had asked if the operators of these websites were going to be charged), I would retract the questions having to do with that aspect of the case, but wanted to see if Erik or someone else at Homeland Security might answer my other questions concerning what appeared to be technical and legal errors in the process itself -- such as what efforts did ICE make to ensure that the domain name seizures did not represent prior restraint, as is required in such seizures under the current law, and whether or not this issue was discussed with the magistrate judge who approved the seizure warrant. I also asked whether or not anyone outside of the RIAA/MPAA representatives (and other government employees) were asked to review the evidence prior to the seizures.

Not surprisingly, after asking a second time if Homeland Security could address these questions, I was told "we are not discussing the matter at this time." So, there you go. Homeland Security had no problem playing up these seizures immediately following their seizure, but as more and more evidence comes out concerning mistakes made, the agency clams up. Transparency in government.

Filed Under: domain names, homeland security, ice, seizures

Yes, The Legal & Technical Errors In Homeland Security's Domain Seizure Affidavit Do Matter

from the apologists-gone-mad dept

Terry Hart, who has become the go-to guy for eloquent defenses of the copyright maximalist's legal arguments lately, is at it again with a post supposedly claiming to debunk some of the posts from here on Techdirt concerning Homeland Security's seizure of domain names. Specifically, the posts that he claims to be debunking are the three posts I made highlighting the technical and legal errors in the affidavit ICE special agent Andrew Reynolds used to get a warrant to seize the domains, as well as the post which highlighted how all four songs he named to get "probable cause" for the seizure of the popular DJ blog dajaz1.com were all sent legally for the purpose of promotions.

Hart claims that if there are any errors in the affidavit they don't matter:

Are there errors in the affidavit? If so, do they even matter? The answer is no.

Hart's reasoning is that since Homeland Security only has to show "probable cause" in its affidavit, the various errors don't matter. Now, without a doubt, the standard for probable cause is different than for guilt in a trial. But that does not mean there are no standards. He quotes various Supreme Court rulings, which grant law enforcement leeway in filing the affidavits and reaching the probable cause barriers, and specifically noting that some level of mistakes are allowed. Specifically, he quotes Brinegar v. United States, where the court gives law enforcement some leeway for errors:

These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.

With all due respect to Hart, I believe his analysis falls short on a variety of different factors. First, I believe he greatly simplifies the overall ruling in Brinegar to a level that the Court almost certainly did not intend. It does allow for some mistakes (in Brinegar it was a small one). It does not allow for massive mistakes that undermine the entire probability equation that makes up probable cause. Obviously, it's expected that sometimes errors will be made. But, given the vast number of errors in this affidavit, combined with the seriousness of those errors, and the fact that (especially with dajaz1) they made up the very core of the probable cause argument, it would seem that the "balance" would shift against this affidavit having been properly executed.

Furthermore, among the Supreme Court quotes that Hart uses to support his argument is the idea that mistakes are okay because the affidavits are done "in the midst of haste of a criminal investigation." There was no urgency here, however. These sites had all been operating for years, and there was no likelihood that they would suddenly disappear. There was no reason for haste, and thus, less of an excuse for the sort of errors which may be acceptable under other circumstances. Even Hart admits that the "leeway" is about "the realities of law enforcement." The realities in this case were that there was no such urgency, and thus the mistakes are less excusable than they might be elsewhere.

More serious than this is the fact that Hart seems to ignore the specifics of what was seized and why. He notes, accurately, that seizure is much like an arrest, done prior to a trial, but (conveniently) leaves out the basis for seizures, which is supposed to be about preventing the destruction of evidence. As the Court notes in Heller v. New York, the purpose of content-based seizures is "preserving it as evidence." As we have already noted, that makes little sense in this situation, as the domain names would not and could not be "destroyed," in any meaningful manner -- and it's easy to copy the contents of the site to preserve that as evidence. Agent Reynolds explanation for why a seizure was necessary was that he was afraid that some third party might somehow get the domain name and continue the criminal copyright infringement, ignoring that an injunction could easily prevent that, and the actual likelihood of that scenario happening was close to nil.

However, the biggest flaw in Hart's argument is that he focuses solely on the issue of probable cause for warrants, and pays no attention to the key issue that we brought up: how seizing full domain names without an adversarial hearing, based on a series of legal and technical errors is almost certainly prior restraint, and a violation of the First Amendment. As was made quite clear in Fort Wayne Books, Inc. v. Indiana, when a seizure involves issues of protected speech, a higher bar is required:

Thus, while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved... It is "[t]he risk of prior restraint, which is the underlying basis for the special Fourth Amendment protections accorded searches for and seizure of First Amendment materials" that motivates this rule.

This line of thinking goes back through a long, long, long line of cases, many of which repeat the famous line: "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." In seizure cases where expressive speech is part of what is removed from circulation, the bar is higher than your average probable cause. That's why those errors are incredibly important, and the lack of any attempt to avoid First Amendment issues is glaring. Hart doesn't mention any of this, which I find surprising.

Finally, Hart closes his post (somewhat out of character for him) by suggesting our motivations for highlighting the problematic nature of the affidavit, arguing that we really don't care about the errors, and our posts are really just another way of attacking copyright law. I would suggest that Hart focus his analysis on legal issues, rather than playing amateur psychologist. My problem with the seizures is not about copyright law (though, I obviously have serious concerns about copyright law as well), but with the clear issue of a violation of the First Amendment. Separately, while Hart seems fine with it (as do the courts), I remain seriously troubled by the entire seizure process, which is widely abused, in cases where it has nothing to do with taking possession of evidence that might otherwise disappear. Playing those concerns down because there's a copyright element to this and I'm a critic of copyright law as it stands today is simply inaccurate, and seems like a cheap shot designed -- unfairly -- to attack my credibility on the situation at hand.

Filed Under: domain names, errors, homeland security, ice, seizure

Indie Music Association Comes Out In Favor Of Seizing Domain Names Of Blogs That Promote Their Music

from the sad dept

If there ever were a group that should be embracing new business models and encouraging the music industry to look forward instead of back, you would think it would be A2IM -- the American Association of Independent Music. After all, they don't have the same legacy issues facing the big four record labels represented by the RIAA. Instead, they can be more creative and willing to experiment with what works well. In fact, over the years, we've noted some really cool and unique experiments done by lots of truly creative and innovative indie labels -- including many who are members of A2IM (and even some represented on A2IM's board).

Yet, we've noticed an unfortunate pattern. A2IM often seems to want to be the "mini-RIAA," frequently staking out identical positions on the issues, and simply adding a "me too" to whatever the RIAA says. Early on it came out in support of ACTA. It's also been involved in astroturfing campaigns in favor of 3 strikes laws, and most recently, argued against the concept of net neutrality (Update: to be clear, as Bengloff explains in the comments, they were only against specific aspects of a proposed net neutrality plan). The group's leadership has effectively admitted at times that they take orders from the RIAA. For example, on the issue of ACTA, A2IM's President, Richard Bengloff, admitted he had not seen ACTA, but supported it because the RIAA told him to.

The latest situation is particularly egregious. Jesse Townley, who runs the famed indie label Alternative Tentacles (Dead Kennedys, Jello Biafra, Butthole Surfers, etc.) alerts us to an email that Bengloff has sent out, urging indie labels to write to John Morton, the head of ICE, the Homeland Security group that seized all those domain names last month under highly questionable methods:

To Independent Labels, Creators & Service Providers who rely upon music having value:

For years we have called on government to help fight Piracy, including those websites that promote the devaluation of music and disregard the rights of creators by leaking music early and without permission. Both the Obama Administration and the Congress have started to provide creators much needed support in recent months. The U.S. Immigration and Customs Enforcement (ICE) Agency has taken aggressive action against infringing websites, recently seizing the domain names of 82 sites. Since then ICE, and its Director John Morton, have been taking heat in the blogosphere and in some print media for their actions. It is imperative that the music community let the Administration know just how vital ICE's actions are, and how much we appreciate them.

We need to show them some love for their action! PLEASE send a note to John Morton thanking him for what he's doing.

This letter, which also highlights a recent A2IM press statement, was sent to the Obama administration by A2IM today. They need to hear from our members across the country now!

Use the A2IM letter as a guide, but please personalize your letter... And express your support for the current actions of U.S. Homeland Security detailed in the attached link press release

Yes, you read that right. A2IM, which is supposed to represent independent labels, is supporting the government seizing domain names of sites with no due process, no First Amendment review. Even worse, as it has become clear, the "evidence" against these sites involved songs that were sent by the copyright holders, and the sites in question were well known within the industry for being key places to promote new music. In fact, some of them were near the top of Vibe's top hip hop blogs list, and were well known places for promoters, labels, artists and DJs to go to promote their works.

So why would an organization like A2IM come out in support of that? It seems that they've just decided to hop on the "blame piracy!" and "the government must save us" bandwagon, rather than actually helping their member labels adapt to the world we live in. Pretty sad when labels that supposedly represent the independent and innovative spirit run to Homeland Security to try to shut down some blogs. Why would any indie label want to support that?

Townley also was kind enough to share his response to A2IM, saying that "This flies directly in the face of record labels trying to be flexible & USE blogs for promotion, which all of us smart ones are doing (among many other things)." I doubt A2IM will listen, but maybe it's time for the really innovative indies to form their own group that doesn't focus on demonizing fans and treating them like criminals, but actually helps these labels and the artists they represent embrace new opportunities online.

Filed Under: domain names, indie labels, music, richard bengloff, seizures
Companies: a2im

More & Bigger Mistakes Discovered In Homeland Security's Domain Seizures

from the another-day,-another-set-of-mistakes dept

We've been covering the ridiculous domain name seizures by Homeland Security's Immigration & Customs Enforcement (ICE) group over the last few weeks, and it seems that nearly every day we come across more info that makes the seizures look like a bigger and bigger mistake. We already noted how strange it was that a group of the seized domains were hiphop blogs and forums that were regularly supported by some of the leading stars in hiphop. Furthermore, we discussed how the specific affidavit that was used to show "probable cause" to get the warrant to seize these domains was full of technical and legal errors, was written by a guy who just graduated college, Agent Andrew Reynolds, and seemed to rely heavily on MPAA and RIAA claims.

With one specific site, dajaz1.com, we noted that the songs used by Agent Reynolds to support his claims, had actually been sent by the artists or record label representatives themselves. Dajaz1 is a blog, not a forum. Agent Reynolds called it a "linking site" which downplays and/or ignores the fact that there is a lot more on the site than just links.

I've now seen the specific email and other evidence as well, and it certainly looks like dajaz1 was asked to promote all four songs that Agent Reynolds listed by the artists or representatives of the artists. There were four songs listed in Agent Reynolds' affidavit, and in each case it appears that the songs were sent by official representatives for the specific purpose of promoting them.

1. Deuces, by Chris Brown
   
   This song was released for free by Chris Brown, as a part of a mixtape entitled Fan of a Fan -- apparently released as part of the effort to rehabilitate Brown's reputation, following the incident with Rihanna. It was only after the song was released free, and a bunch of (you guessed it) hiphop blogs and forums started promoting it, that his label, a subsidiary of Sony Music decided to release it commercially. That song was sent directly to dajaz1 from someone at Brown's record label, using an email from the record label, and it's clear from the email that the sender is urging the recipient to spread the songs.
   
   
2. Long Gone, by Nelly
   
   This song was sent directly by a VP at the record label, who was thanked in the blog post on the website, which linked to where the song could be downloaded. A simple search by Agent Reynolds of the person thanked on the blog posting (which I did) would quickly uncover the fact that the person was a VP at the record label.
   
   
3. Fall For Your Type, by Jamie Foxx
   
   This song was sent directly by a known promoter of music, who has worked with the major record labels. The email clearly suggests that it is promoting the song for the rightsholder, and directly encourages the recipients of the email to download and share the song.
   
   
4. Mechanics, by Reek Da Villian
   
   This one's interesting, since Reek Da Villian is not signed to a major record label, but is an artist whom Busta Rhymes has taken under his wing, and has been supporting and promoting for a while now. That song was apparently sent directly by Busta Rhymes -- though I did not see that email. However, considering that his work is not represented through an RIAA affiliated label, it seems odd that Reynolds would rely on an RIAA representative to later claim that this file was infringing. There's even a sort of odd admission of this in Agent Reynold's affidavit, where he notes:

   "Based on my review of public record listings, as well as conversations with RIAA representatives, I know that as of October 26th, 2010, all of the above referenced songs were determined to be "Pre-release" or not yet released for purchase to the general public, three were copyrighted, and the copyright holders did not authorize their third party distribution over the Internet by DAJAZ1.COM or any other website."

   Note that he says all were pre-release, but only three were copyrighted. Of course, this is another example of where Agent Reynolds shows his confusion about the law. All new and original creative works in the US when set in fixed format are automatically covered by copyright (technically "copyrighted" is not a verb, also). What Agent Reynolds probably meant, but got wrong, was that the Reek Da Villian song was not registered (which is not required to be covered by copyright). Still, if we assume that he believes what he wrote, how is it copyright infringement when Agent Reynolds himself admits that one of the songs is supposedly not covered by copyright? And why would the magistrate judge allow that?

So that's that. The four songs used by Agent Reynolds to support the domain name seizure of dajaz1.com, all appear to have been sent for the purpose of promoting in this manner. The Dajaz1 site was quite popular with DJs, and was regularly used by labels, artists and promoters as a way to get their music out to those DJs. It does not appear that Reynolds checked into any of this. Instead, he simply asked Carlos Linares, the VP of Anti-Piracy Legal Affairs for the RIAA, who claimed that all four songs represented "pirated songs" that were "unauthorized copies of rights holder's works," even though there are questions about whether or not he actually knew that for a fact, or even had the right to speak for some of the artists/songs in question.

On top of that, if you dig into the dajaz1 website, you quickly see that it is not at all focused on just offering up as much as possible to download. In multiple cases, the blogger notes that he will not post links to too many tracks from an album, suggesting that the site is not at all focused on getting as much infringing material up as possible, as implied in the affidavit. If that was the goal, why would it specifically refuse to post links to more than just a few songs?

Separately, the person I spoke with from dajaz1 claims that, contrary to Agent Reynolds' assertion that the site had signed up for a Valueclick advertising account, no such account was actually set up. He claims he's willing to state that under oath. Agent Reynolds' claims that the account was set up using an email address that was associated with the site. I'm not sure who's right in this instance, but the whole thing does seem questionable.

The further you dig into this, the deeper you get into just how ridiculous the music industry works these days -- with various subsidiaries and independent promoters and DJs and mixtapes, and all sorts of stuff that the labels very specifically support with one hand, while pretending to be above all that with the other. There are more details that I'm still researching, but some of it suggests that the last thing the major record labels want is for this to go to court, because it'll expose all sorts of things that the labels are doing that they probably don't want exposed.

Either way, even if we go with Occam's Razor and assume that these four cases are examples of the left hand (lawyers) not knowing what the right hand (promotions/marketing) was doing, it highlights why it's a total mistake (and probably a violation of the law) for Homeland Security to have simply seized these domains without an adversarial hearing -- or any contact with the sites in question themselves. Some of our commenters have insisted that all of these sites were "obviously criminally infringing," but the evidence suggests an extremely different story. And it's that sort of thing which is why we're supposed to have due process in the US before we shut stuff down or seize things.

Contrary to what some believe, copyright infringement is rarely a "black and white" case -- which is why we have trials to determine whether or not something is actually infringing. This is even more true in cases of criminal copyright infringement, which has a much higher bar to prove. So it's beyond baffling that Homeland Security and the magistrate judge who approved these seizures felt that it was simply okay to seize them prior to any adversarial hearing, where much of these details might have come out.

Filed Under: andrew reynolds, copyright, dajaz1, domain names, first amendment, homeland security, ice, promotions, seizure
Companies: dajaz1

Full Homeland Security Affidavit To Seize Domains Riddled With Technical & Legal Errors

from the this-just-gets-worse-and-worse dept

Another day and even more evidence that Homeland Security's decision to have its Immigration & Customs Enforcement (ICE) group seize a bunch of domain names without any warning or adversarial hearing was a colossal screw up. We haven't heard too much about the sites seized concerning trademark infringement, but there were five that were the focus of copyright infringement -- including a bunch of hiphop blogs (which were regularly used by artists and record labels alike to promote their songs) and a search engine. Last week, we went through a partial affidavit from a newly minted ICE agent named Andrew Reynolds, which showed numerous technological and legal errors in explaining why the domain of the search engine, Torrent Finder, was seized. Yesterday, we wrote about how some of the "evidence" used against the blogs included songs sent by the labels for promotional purposes.

A few different folks have since sent over the full affidavit which you can see below. So now we can see the "details" of the evidence put together by Agent Reynolds that was (literally) rubber stamped by magistrate judge Margaret Nagle, and it's looking worse and worse for Homeland Security. Basically, all of the sites in question had some forums and in some of those forums, some users posted links to other sites, which hosted some content. In other words, under these conditions, an awful lot of domain names on the internet can be seized by ICE.

Just for fun, I went through most of the files found in the document and searched for them all in Google. In every case, Google popped up plenty of links to sites hosting that content. Now, it's entirely possible that a copyright holder could make the argument that some of these sites reached the level of "inducing" copyright infringement, but, as both Agent Reynolds and Judge Nagle should know, inducement of copyright infringement is a very dynamic area of law, which has multiple factors needed to establish whether or not inducement occurs -- most of which Agent Reynolds did not bother to present. Furthermore, inducement is supposed to be determined in a court of law following an adversarial trial -- not because some recent college grad ICE agent asked a movie or recording industry exec their opinion on the matter.

At no point, does it appear that any effort was made to establish that seizing an entire domain based on a small fraction of what occurred on the site does not violate the First Amendment. This is going to present a pretty serious problem for Homeland Security, because there's a fair amount of legal precedence saying that you need to take into account the First Amendment implications before seizing forms of expression.

Of course, one response to this, that we saw in the comments, was a claim that since ICE only seized the "domain name," speech wasn't prevented, since the speech could still live on on the server itself. This explanation fails for two reasons. First, domain names themselves can be considered speech as has been highlighted in a few different cases. Second, and more importantly, Agent Reynolds' own affidavit makes it clear that the seizures of domain names was because of the content found on those domains (though, he repeatedly, mistakenly seems to think that content on other servers is the responsibility of those domains). If Reynolds was only seizing the domain names to avoid stifling speech of the content on the rest of the servers, his entire argument fails. In his affidavit, he clearly states that he wants to seize the domain names because the domain names are "property used, or intended to be used to commit or facilitate criminal copyright infringement." But, if we're really going to argue that the domain names and the content on the servers are separate, then this argument makes no sense. The domain names themselves are not being used to commit or to facilitate criminal copyright infringement. Only some of the content on the servers.

Furthermore, Agent Reynolds' explanation for why the domains need to be seized rather than allowing an adversarial hearing to take place are laughable at best:

Neither a restraining order nor an injunction is sufficient to guarantee the availability of the SUBJECT DOMAIN NAMES for forfeiture. By seizing the SUBJECT DOMAIN NAMES and redirecting them to another website, the Government will prevent third parties from acquiring the names and using them to commit additional crimes. Furthermore, seizure of the SUBJECT DOMAIN NAMES will prevent third parties from continuing to access the five websites listed above.

In other words, in yet another moment of technological ignorance on the part of Agent Reynolds and the judge in question, they seem to really believe that seizing the domain names prevents people from accessing the content in question. Of course, that was quickly proven false by the fact that most of these sites reappeared within hours on different domain names. But it also highlights how Reynolds really did mean to shut down the entire website (he was just somewhat clueless in how to actually do so) with zero regard (as required by the law) for the First Amendment implications.

On top of that, his claims of why the domains need to be seized, rather than allowing a court to issue an injunction or a restraining order, don't make sense either. Did he really think that with an injunction or a restraining order and an actual case going to court that "third parties" would magically acquire the domain names in question? And, even if they acquired the domain names, what would that have to do with the content on the servers? Is Agent Reynolds really basing his claim that these domains needed to be seized prior to an adversarial hearing based on a series of highly improbable events: (1) that a lawsuit would be filed against these domain holders, (2) that the court would issue an injunction and (3) that, for some reason, it would also not instruct the domain holders not to get rid of the domains in question, and (4) that not having happened, that the domain holders would simply decide to sell off or to give away those domains, and (5) that those domains would then fall into other hands, and (6) that those others might possibly use it to commit "additional crimes"? Really? The first two steps in the chain could be reasonable, given certain conditions, but the following four steps are beyond improbable.

Is Homeland Security really basing its already First Amendment-questionable seizure of domain names, for sites the industry used to promote its own works with no notice or adversarial hearing, with questionable and error-riddled evidence on a series of six hypotheticals, many of which are highly improbable?

Filed Under: domain names, homeland security, ice, seizures

Homeland Security's 'Evidence' For Domain Seizures Also Included Songs Sent By Labels

from the this-gets-worse-and-worse dept

We've already covered some of the serious problems with the "affidavit" filed by Homeland Security's Immigration and Customs Enforcement (ICE) unit, highlighting confusion about both how the internet works and the law itself. The affidavit was written by a recent college grad who appears to have little experience in the subject matter. What we had seen so far was only a partial version of the affidavit, covering the reasons for seizing Torrent Finder's domain. It was full of both technical and legal inaccuracies, which are troubling. The NY Times apparently got its hands on the entire affidavit (though, oddly, doesn't appear to offer it for download, as far as I can tell), and showed part of it to the operator of dajaz1.com, one of the sites that was taken down. The operator of the site notes that many of the examples used in the affidavit of infringing content were sent by the record labels themselves, and he showed the NY Times reporter the emails from labels sending the songs that were named in the affidavit. Hopefully the guy who operates the site has lined up competent legal help, because the more evidence that comes out in this case, the worse and worse Homeland Security/ICE is looking.

Filed Under: blogs, domain names, first amendment, homeland security, ice, promotions, seizures