Wikileaks & ICE Domain Seizures Show How Private Intermediaries Get Involved In Government Censorship

from the intermediaries-matter dept

There have been two big stories this week, both of which have elements of US government censorship of speech. The first, of course, is the pressure put on Amazon to drop Wikileaks as a customer of its S3 storage. The second is Homeland Security seizing a bunch of domain names by getting VeriSign to hand them over. In both cases, defenders of these actions claim they're not censorship, but both appear to involve the US government stepping in and either explicitly or implicitly getting a US corporation to block a form of speech. That's concerning.

Of course, beyond the problem that the government would be doing this in the first place is a separate concern: the role of corporations in helping make this happen. Some have argued, in the case of Amazon, that as a private company it has the right to refuse service to anyone. That's absolutely true. But if it's refusing service based on political pressure from those in positions of power, that's still censorship. While I don't buy into the idea that companies like Google and Facebook are monopolies, Ethan Zuckerberg does raise a very good point (talking about the Amazon/Wikileaks situation) about the role of corporate giants as intermediaries that can help a government censor:

If they simply responded to pressure from a US Senator, or to boycott threats, it sends a very disturbing message: that Amazon will remove content under political pressure. Yes, Amazon is within its legal rights to refuse service to a customer… but as I’ve argued previously, they’re a private company responsible for a public space. That’s the nature of the internet – we use it as a space for public discourse, though the sites we use for much of our discussion are owned by private corporations and controlled by terms of service that are significantly more stringent than restrictions on public speech.

The rise of internet hypergiants like Amazon that host servers for hundreds of thousands of clients makes these potential conflicts more clear. If you are dissatisfied with the terms of service of your hosting provider, you can always find another… up to a point. There’s been massive consolidation in the web hosting market, and companies like Amazon are likely to control large shares of the market in the future, both because there are economies of scale in providing low-cost service, and because large server farms can more effectively defend from attacks like DDoS. But if large providers like Amazon won’t take on clients like Wikileaks, they’re forced onto smaller ISPs, which may be more costly and less able to thwart DDoS attacks.

I'm not as convinced that this is a problem in the web server space yet. There are still other places that Wikileaks can certainly go. But when it comes to domain names, the central nature of companies like VeriSign is at least a concern. It's also why more distributed solutions become a lot more interesting.

Filed Under: censorship, companies, free speech, homeland security, ice, intermediaries, internet
Companies: amazon, verisign, wikileaks

Homeland Security Admits That It's The Private Police Force Of The Entertainment Industry

from the your-taxpayer-money-at-work dept

We've been quite concerned about the legality of Homeland Security's domain name seizures -- especially in cases where they took down sites that had a ton of legitimate content, such as various hip hop blogs, with no due process and no adversarial hearings. One other concern was where Homeland Security's direction on this was coming from. As we noted, in an earlier similar domain name seizure situation, Homeland Security announced the seizures from Disney's headquarters -- which should raise lots of eyebrows. As we said at the time, imagine any other government agency announcing a third party action that benefits a particular company from that company's offices. For example, imagine the FTC announcing antitrust actions against Google from Microsoft's offices. Wouldn't people question the legitimacy of that?

Well, apparently, Homeland Security and the folks in its Immigration & Customs Enforcement (ICE) group have no qualms at all about being quite upfront and frank about both the fact that they're acting as Hollywood's private police force and that they have little concern for due process. Entertainment Weekly spoke with Erik Barnett, the "assistant deputy director" for ICE, and he readily admitted that they were taking orders from the industry:

"In general, what we can say is, there are specific complaints from rights holders that these sites were infringing on copyrights."

That alone should give you pause. Rights holders have a long and very detailed history of greatly over-exaggerating when their rights were supposedly being "infringed" upon. Remember Jack Valenti of the MPAA claiming that the VCR was the Boston Strangler to the movie industry? Why didn't Customs "swoop in" and block all VCRs from being sold? Why? Because that would be ridiculous. So why is it effectively doing the exact same thing here?

As for due process, Barnett apparently doesn't care, and pretends that due process is basically ICE says you're guilty, so you are:

"I mean, when we're conducting criminal investigations, we don't notify criminals that you need to abate your criminal conduct or there's going to be an enforcement action against you," says Barnett. He is not particularly sympathetic to bloggers who might feel that the shutdowns have damaged their livelihoods without due process. "I understand that this is a question that gets raised," he says. "But from a law enforcement agency standpoint, there's criminal activity. The process that's set up to address that is a law enforcement agency investigates, which is what Homeland Security Investigations does. The Justice Department determines if the elements of the criminal statute have been met. And then a judge determines if the enforcement action that's proposed -- in this case, a seizure warrant -- is appropriate. So that's the process.”

Notice he never mentions an actual trial where the other side gets to put forth its arguments. Of course, for those of us who actually understand due process -- as opposed to just Barnett's cowboy process, we understand that normally you have an adversarial hearing where the other side gets to present its case before summarily being declared guilty. If there's "criminal activity" (and even that's questionable -- as it's difficult to see how what these blogs did goes beyond civil infringement, if it really was infringing at all), then you arrest them and put them on trial. You don't just seize the domains.

Barnett also claims that this is no different than Customs seizing shipments of counterfeit goods as they enter the US, but that's a huge stretch. Customs' job is to guard what crosses the borders. That's it. Seizing entire domain names because there may be some infringing material on the site (which, again, was never established at a trial) has absolutely nothing to do with protecting the borders. And the very fact that Barnett's already admitted to relying on the industry's say so that these things are infringing is downright scary. Why are our tax dollars being used to protect legacy entertainment industry companies that refuse to adapt?

Filed Under: customs, due process, homeland security, ice, police force

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Five Questions For Homeland Security Concerning Its Online Censorship Campaign

from the please-answer... dept

As we discussed earlier, last week Homeland Security seized a bunch of domain names under a rather questionable mandate, claiming they were helping stop copyright infringement. Not surprisingly, ICE (Immigration & Customs Enforcement) boss John Morton -- who has a history of making statements that make little sense to support such seizures, again took to the press to make some statements that made little sense in support of these takedowns:

"American business is under assault from counterfeiters and pirates every day, seven days a week," Mr. Morton said. "Criminals are stealing American ideas and products and distributing them over the Internet."

Now, this statement has all sorts of problems, and it's scary that a government official -- and one with the ability to outright seize domain names, would make so many false claims in a single quote. First of all, the evidence suggests that American business is not, in fact, "under assault" from counterfeiters and pirates. In fact, we've detailed a whole series of studies that suggest counterfeiting is not nearly as big a problem as the industry makes it out to be. In fact, studies have repeatedly shown that counterfeits are rarely even substitute products, as many buyers aren't being "fooled" at all, but are using the products as a way to build up to the real thing. There are a few areas where counterfeiting is serious -- such as with faked drugs -- but, even then, the "risk" is often overblown, as big pharma companies pretend that mere generics are also "counterfeits," when they're really just cheaper competition.

Of course, even more insidious is Morton's regular mixing of "counterfeiting" and "copyright infringement" -- which are two extremely different things. In his statement, however, he seems to rely on whatever is "worst" for what he's talking about. Counterfeit products seem like a bigger problem than straight copyright infringement, so he puts that first as saying "counterfeiters" are a problem. But, of course, the websites seized have nothing to do with counterfeits, so he switches and pretends he's talking about copyright, saying that "criminals are stealing American ideas and products and distributing them over the Internet." Except you can't "steal an idea." It's simply not possible. Nothing is missing. You can copy an idea -- but an idea is not copyrightable -- only an expression is. You would think that someone representing the US government, seizing domain names over copyright infringement would know that you can't copyright an idea.

So, given all of this, I have the following questions for Mr. Morton, anyone else at Homeland Security or in the Obama Administration, or those who support these domain seizures:

1. Under what legal mandate is a group that's supposed to be focused on Immigration and Customs getting involved in taking down websites? What does a website have to do with either immigration or customs?
2. Since the original seizures were announced at Disney, is it common practice for Homeland Security and/or ICE to focus on using their guns and power of raids and seizures in efforts that are designed to help specific companies?
3. Since at least some of the websites taken down were search engines that hosted no infringing material, how does Homeland Security/ICE make sure that it is not seizing domain names incorrectly (as it appears to have done in this case)?
4. Since we thought the US believed in due process, how does seizing domain names, prior to any adversarial trial, fit with the concept of innocent until proven guilty? And, yes, I'm well aware of the right to seize property as part of an investigation, but when dealing with websites, we are talking about a form of speech that has a much higher burden before it can be stopped -- so I'm curious for the government mandate on seizing domain names prior to a trial?
5. John Morton has made numerous claims of "harm" from these websites, but has not shown any evidence (publicly) to support those claims. Considering that the GAO and OECD's own reports question whether or not there is any such harm, can Morton show us which reports he relied on in proving "harm" before getting a court order to seize those domains? One would hope that the evidence of "harm" would come from more than a few companies, who haven't adapted to modern technology, merely claiming so. Hopefully Morton or others can show us the evidence.

I figure if we're going to allow Immigrations and Customs officials to suddenly start censoring the web, they should at least be able to answer those questions.

Filed Under: censorship, domain names, first amendment, homeland security, ice, john morton, seizures

Who Needs COICA When Homeland Security Gets To Seize Domain Names?

from the this-won't-end-well dept

By now you probably know that over the Thanksgiving Holiday, Homeland Security wasn't just feeling up your grandmother and staring at your naked daughter at the TSA, but ICE (Immigration and Customs Enforcement) went way beyond its mandate to seize a whole bunch of domain names. This is not the first time it has done this, of course. Back in June, we noted a very similar, if somewhat smaller, raid. That one was equally questionable, as not only did it involve seizing domains without an adversarial trial, but also the announcement was made at Disney headquarters, which should make you wonder when Homeland Security started working for private corporations to shut down websites it does't like without a trial.

The latest set of seizures is no less troubling. These domain seizures come even without the COICA law being in place, and despite assurances from COICA supporters that no such domain seizures would ever possibly come without a full trial first, many of the operators of the domain names seized in this round state they hadn't received any notification of complaints, let alone demands to be taken down.

And it gets even more ridiculous, as some of the sites taken down appear to be nothing more than search engines, which did not host any content and did not host any trackers, but simply acted as perfectly normal search engines. For anyone who actually understands how the internet works (i.e., clearly not Homeland Security) this is a massively troubling move, suggesting that if Homeland Security doesn't like how your search engine works, it can simply seize your domain and put up a really scary looking graphic, claiming it has taken over your website: Even the search engine folks are quite worried about this -- and they're not the sorts who usually pay too much attention to questions about copyright.

And, of course, none of this is actually stopping these sites from working. Within hours, many had popped back up elsewhere. The whole thing seems highly questionable. Seizing domain names without a trial, and taking down sites that appear to be nothing more than search engines, rather than actually hosting infringing material, is a huge, dangerous step, which appears to have absolutely nothing to do with Homeland Security's mandate.

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