ICE Admits That It Just Wants To 'Put People In Jail' With Operation In Our Sites

from the nice-of-them dept

Rob Fischer has a fantastic article at The American Prospect, looking at ICE's Operation In Our Sites program, with a specific focus on the seizure and subsequent prosecution of NinjaVideo. It's worth reading in its entirety, as a few things become clear. Here are just a few interesting tidbits, though. First up, the site's admins noted that they had done their best to abide by the DMCA, and they figured that if anything, they might have to fight a civil lawsuit, not a criminal one:

Under the Digital Millennium Copyright Act of 1998 (DMCA), copyright owners are responsible for sending takedown notices to sites hosting infringing content. Anyone on YouTube who has ever read the statement “This video has been removed due to terms of use violation” has seen the result of a DMCA notice. “We believed that if we didn’t host the content but linked to it elsewhere on the Web, our only legal consideration was complying with takedown notices,” Beshara says. “And we always complied.”

But it wasn’t so simple. The DMCA takedown process allows intermediaries like YouTube to avoid liability because it’s their users uploading the infringing content. Ninja Video was both the intermediary and the uploader. Independent storehouses called “cyberlockers” hosted the content Ninja Video streamed, but Ninja’s uploaders put it there.

I'm not sure that this is really an accurate explanation of the DMCA issue, seeing as the users uploaded the content... that's the same thing with YouTube and Veoh, both of which have been declared legal under the DMCA. As long as they followed the safe harbor provisions, the fact that users upload shouldn't have an impact. There very likely may have been issues of secondary liability if the site encouraged people to infringe -- but that's a separate issue, and one that again should have been an issue for civil copyright law, rather than criminal.

The folks at ICE come across as typical meatheads with no clue what they're dealing with here. The real humdinger of a quote comes from ICE Special Agent William Ross, who earlier in the piece notes that he was influenced by Hollywood repeatedly asking him to do their job. But when confronted with the point (made by Corynne McSherry from EFF) that "Arresting people and putting them in jail for having some links online doesn’t really strike me as a good way for us to invest our time and energy." Ross hits back:

“I am a law-enforcement officer,” says Special Agent Ross. “I want to put people in jail.”

That, alone, is a pretty ridiculous and scary quote when you think about it. He's not talking about fairness or justice or upholding the law. He just wants to "put people in jail." People like that shouldn't have jobs in power.

In the end, it seems clear that the folks at Ninja Video received horrific legal advice and made some equally poorly thought out legal decisions themselves. I still don't see where the site's operators could have possibly been liable for criminal copyright infringement, but after throwing away the $10,000 they raised on lawyers, who (from the description in the article) did not appear to do very much (and it's not clear they ever understood fully what was happening), the admins quickly caved to government pressure on plea bargains.

In the wake of the Dajaz1 debacle by the Justice Department, it seems even more ridiculous that the NinjaVideo folks agreed to the plea deals. If they'd just received some decent legal advice early on, they wouldn't now be facing years in jail. Pretty unfortunate.

In the meantime, what you get is a ridiculous portrait of a bunch of "we just want to put people in jail" semi-clueless ICE agents (they repeatedly use Alexa as their judge of what's popular -- can no one buy them a subscription to a decent online monitoring service?) who don't even recognize the First Amendment implications of seizing sites with tons of non-infringing content on it, and who seem to be totally in awe of big entertainment companies and the myths they tell. The whole thing would be amusing if it didn't involve serious Constitutional questions and if people weren't ending up in jail.

Filed Under: dhs, domain seizures, free speech, ice, operation in our sites, william ross
Companies: ninjavideo

Major Labels, RIAA, Homeland Security All Spotted 'Pirating' Works

from the telling dept

Early last week we noted that, using the tool, YouHaveDownloaded, some folks in the Netherlands noticed that the local music collection society appeared to be engaging in infringement. You knew that wasn't where things would end. Soon after that, people spotted infringement emanating from NBC Universal, Sony Pictures and Fox Entertainment -- three of the biggest supporters of ever more draconian copyright law. And, of course, that was just the beginning. The RIAA and Homeland Security have now also been identified. And, no, in most of these cases, it's clearly not just for research purposes or to find infringers. The RIAA, for example, could probably get away with downloading music... but the first five seasons of the TV show, Dexter? That's tougher to believe. The folks at Gizmodo have calculated just how much the RIAA's likely infringement here should cost, using the RIAA's own metric of the maximum statutory rates of $150,000 per infringement... and figured the RIAA owes about $9 million. Somehow I doubt we'll see the RIAA pay up any time soon.

Filed Under: copyright, dhs, infringement, pipa, protect ip, sopa, you have downloaded
Companies: fox entertainment, nbc universal, riaa, sony pictures

What Other Websites Is The US Government Secretly Censoring?

from the questions-to-be-answered dept

We're still trying to understand the overall fallout from last week's news that the feds seized and censored the music blog Dajaz1.com for over a year and blocked every chance for the site to get its day in court... before finally giving up and just handing back the site. And while lots of people have focused on that story, it seems worth asking what about the others? Back in June, we released a list of five domains whose owners had asked the government to return them. Two of them, rojadirecta.org and rojadirecta.com, have been involved in a lawsuit. The government sought to forfeit those two domains (i.e., get to keep them permanently) -- but did so only after rojadirecta's company, Puerto 80, filed a lawsuit officially demanding the return of the domains.

As far as we know, the other three sites all followed a slightly different process, which involved them officially petitioning the government to return the domains -- at which point the government has 90 days to either begin forfeiture procedures or to hand back the domain. That was in early June. As we know, with Dajaz1, the government had already begun getting a series of totally secret (indeed, we have no idea if they really exist) "extensions" from the court to allow them to hang onto the domain much longer without actually facing them in court over a forfeiture process. With Dajaz1, the government finally gave up and gave the domain back.

But there are still two domains unaccounted for: OnSmash.com and Torrent-Finder.com. Again, the list we posted back in June was an official list from DHS/ICE noting sites who had asked for the return of their domain. Even if we assume that such requests were made on June 13th (and they were all made significantly earlier), those domains either should have been returned or forfeiture proceedings started by mid-September at the latest. But we're in December, and as far as we can tell, no such procedures are under way.

That leaves two options: OnSmash and Torrent-Finder rescinded their demands for the return of their domains... or they're currently in the midst of the same Kafka-esque government-run secret censorship program. And, for all we know, there may be other sites as well.

So it seems like Attorney General Eric Holder and the Justice Department (as well as the folks at ICE) have some explaining to do. Who else are they censoring without due process? How many other sites had speech seized and are being denied their day in court? Just how deep does this program of the federal government censoring online websites go?

Filed Under: censorship, dhs, doj, domain seizures, due process, first amendment, ice, prior restraint
Companies: dajaz1, onsmash, torrent-finder

Congressional Investigations Into Dajaz1.com Censorship Begin

from the let's-see-what-they-find-out dept

If the Justice Department hoped that it could seize the domain of a hip hop blog for over a year with no due process and then return it quietly and pretend nothing had happened, it may be in for a bit of a surprise. About an hour and a half after we broke the story, it just so happened that Rep. Zoe Lofgren was in a Judiciary Committee hearing with Attorney General Eric Holder, providing her an opportunity to ask him about the situation. You can see the full five minute exchange below: There's not much of substance there. Holder basically says that he doesn't know the specifics, hopes that there's more to the story, and promises that since his daughters are watching and it has something to do with hip hop, that they'll be the first to remind him to respond to Lofgren's question once he has more details.

It looks like he may be getting other reminders as well. Senator Ron Wyden told Wired that he intends to start asking significant questions about Operation In Our Sites, and it doesn't sound like he's going to give up easily:

“I expect the administration will be receiving a series of FOIA [Freedom of Information Act] requests from our office and that the senator will have very pointed questions with regard to how the administration chooses to target the sites that it does,” said Jennifer Hoelzer, a Wyden spokeswoman. She said the senator was “particularly interested in learning how many secret dockets exist for copyright cases. There doesn’t seem to be an obvious precedent or explanation for that.”

I'll certainly be interested to see what they turn up.

Filed Under: copyright, dhs, doj, domain seizures, eric holder, free speech, linking, pipa, protect ip, ron wyden, sopa, zoe lofgren
Companies: dajaz1

Homeland Security Says Homeland Security Hasn't Abused Airline Passenger Info

from the doesn't-that-make-you-feel-safer dept

As there are continued concerns from the EU about US requirements to hand over passenger info to the US, where it will be stored for at least fifteen years, Homeland Security trotted out its own "chief privacy officer," who insists that Homeland Security hasn't abused the information. Somehow, trusting DHS to tell us DHS isn't abusing the information DHS so desperately wants... isn't particularly comforting.

Filed Under: airlines, dhs, eu, passenger info, privacy, us

Another NinjaVideo Admin Pleads Guilty, Expect The Rest To Do So Too

from the dead-to-rights dept

This isn't much of a surprise, given our earlier stories. As we noted when the Justice Department indicted five people for their roles in the Ninjavideo community, they appeared to have a pretty strong case against them. So it really wasn't a surprise that one of the defendants, Matthew Smith, agreed to a plea bargain, which we noted almost certainly involved him agreeing to testify against the rest. For the Justice Department, that's pure gold. They can then use that to pressure everyone else into plea bargains as well (and each one down gets worse terms). So, it looks like Hana Beshara -- who was "the face" of NinjaVideo -- was the second to fall, taking a plea bargain deal in which she also pleads guilty. Those two were the big fish. I'd be surprised if the other three don't fold quickly as well at this point. Of course, as with the Smith plea, you should take what they admitted to with a pretty big grain of salt. If you want an obvious sign of how the agreement and reality may differ, just look at the details of the Beshara plea, in which she claims that she personally got $200,000 out of the alleged $500,000 the site made. We're skeptical that the site ever made anywhere close to $500,000 or that Beshara made $200,000. So notice that the $200k number is mentioned in how much she made, but no amount is stated in how much the government took from her:

Beshara admitted that she and her co-conspirators collected more than $500,000 in overall proceeds during the website’s two-and-a-half years of operation, with Beshara personally receiving more than $200,000. As part of her plea agreement, Beshara agreed to forfeit assets seized by ICE’s Homeland Security Investigations (HSI) in June 2010, including cash, an investment brokerage account, two bank accounts, a Paypal account and one Internet advertising account.

If ICE got anywhere near $200,000 out of those accounts, they would have said so. They didn't, probably because that money never existed.

Filed Under: criminal copyright infringement, dhs, doj, hana beshara, ice, indictment, ninjavideo

US Gov't Continues Indicting People For File Sharing; 5 Indicted For NinjaVideo

from the best-use-of-resources? dept

As lots of people have been submitting, the Justice Department, in coordination with Homeland Security's ICE group, have indicted five people associated with the site NinjaVideo.net, claiming that together they represented a "conspiracy" to commit criminal copyright infringement. I will say this: compared to the laughable Rojadirecta case, in which the government fails to even show any actual criminal copyright infringement, the indictment here seems a lot stronger -- and unless they got something in the indictment totally wrong, I would predict that these five people are going to lose and lose badly in court.

Unlike the Rojadirecta case, the indictment suggests that NinjaVideo hosted content itself. It also suggests that these admins were very much directly involved in seeking out and distributing infringing content, and profiting from it. The fact that the feds are charging admins and uploaders together as "a conspiracy," is an interesting move, and one that is probably intended to get around the huge problem in the Rojadirecta case: which is that they show users sharing content, but not making money from it, and they show the site admins making money, but not uploading content. You have to show both by a single party for criminal copyright infringement to have happened. So, in this case, they're trying to link the five people together as a conspiracy. From the indictment, which is obviously one-sided, they make it appear that the two major uploaders were closely aligned with the admins. Whether or not that's actually true may be a big part of determining whether or not this case works. Also, it's not clear from the indictment how the hosting setup worked, and if NinjaVideo itself really hosted the material, but that also will be a key point in the case. Assuming that what's in the indictment is accurate, and not taken out of context, however, I just don't see NinjaVideo standing much of a chance in court.

One really interesting factoid in the indictment for all the Google-haters, who insist that Google is the major supporter of these kinds of sites: Google pretty quickly killed the AdSense account that the NinjaVideo folks had opened, telling them that it was because the site appeared to be distributing infringing works. Google-haters keep insisting that Google never shuts down such accounts, but this appears to be a case where they spotted the site pretty quickly and shut down the account.

TorrentFreak also points to a video made by Hana Amal Beshara, an admin for NinjaVideo who went by the name Phara. The video suggests that she and the others had some serious problems communicating with their lawyers, but that's really not going to matter much. She also notes that they wanted to go public with what was happening ever since ICE seized their website in the very first round of Operation In Our Sites, but that all the lawyers kept saying to stay quiet. She says she now regrets that -- especially since she was indicted anyway -- and doesn't plan to stay quiet any more. While I understand the sentiment, the video itself isn't going to do much to help her case, in that she expresses "no regrets" for her involvement in NinjaVideo. The video makes it clear that she means this because the community "saved her life," but you can bet that the Justice Department will use that against her in court -- claiming she has no remorse.

I still think it's a bit silly for the Justice Department and Homeland Security to be doing this -- as it really should be a civil issue. It seems like Neil MacBride -- the former "anti-piracy" VP for the BSA, and now a US Attorney who was heavily involved in the indictment -- is paying back some favors to the copyright industry he came from. But, this way Hollywood gets taxpayers to pay for these kinds of lawsuits, instead of having to cut back on their own excesses. I also still question the legality of the original seizure of the domain name prior to any adversarial hearing. But, on the whole, these actual charges appear to have a lot more meat to them than what we've seen before in some of the other cases. It won't stop people from infringing, of course. And it won't stop similar communities -- though they'll probably drive those groups a bit further underground, making it more difficult for MacBride and his friends to track them down. But I guess as long as they feel they're "making a difference...."

Filed Under: criminal copyright infringement, dhs, doj, ice, indictment, ninjavideo

New York City Freedom Of Information Requests Fail Miserably

from the doesn't-Bloomberg-own-an-information-company dept

Interesting timing on this one. As you may recall, back in May we filed three Freedom of Information requests, two with NYC and one with Homeland Security's ICE division. To date, we've only received one complete response, from NYC telling us that they didn't have the documents in question -- which actually revealed some interesting info about how Homeland Security was posting NBC propaganda as if it were done by itself.

However, we're still waiting on the other two. ICE has said that they're still processing our request (though I believe it's now past the legal limit to do so). Similarly, NYC is way past due in fulfilling our request under NYC's Freedom of Information Law (FOIL).

It turns out that this is par for the course for New York City. Reader Stephen points us to a report that says that, even though Mayor Bloomberg has promised to be much more transparent, the city government regularly witholds information or ignores requests altogether, according to amNewYork. The NY Times has even sued the city over this. amNewYork ran some tests itself, sending out 38 requests, and detailing the responses. Here are a few of the lowlights from NYC:

• Eight agencies failed to respond within the five-business-day deadline they are given to make the information available, deny the request with a reason, or provide an approximate date when the documents will be ready.
• Some agencies expressed disdain for answering queries. Concerning a related question on FOIL requests, a city Housing Preservation and Development staffer wrote in an email to a records officer that “this is the kind of crap I have no patience for.” Incidentally, HPD was the fastest agency to respond to amNY’s initial FOIL request, taking two days.

The report has a lot more information and details, but it sounds like folks working for the NYC government really just don't care and so they don't really follow the law.

Filed Under: dhs, foia, freedom of information, new york city

Senator Leahy Praises US Gov't Censorship Of Websites As ICE Takes Another Victory Lap

from the they-live-in-an-alternate-reality dept

It really would be kind of funny to watch the US government congratulate itself for censorship of websites if it wasn't just kind of sad. At a Senate Judiciary committee hearing on intellectual property issues, Senator Patrick Leahy (top 3 campaign contribution sources: lawyers, entertainment industry, lobbyists -- you can't make this stuff up) praised administration officials for censoring websites based on questionable accusations from an entertainment industry who seems to think that their own content creators are running "pirate" websites.

Of course, Leahy apparently doesn't recognize the irony of condemning internet censorship in other countries while praising it at home when it benefits his biggest campaign contributors.

The same hearing gave ICE assistant director Erik Barnett one more chance to declare victory, though I note with some amusement that the text of Barnett's speech this time leaves out the bogus claim that no sites are challenging the seizures. Apparently he's realized that some people might call him on it when he blatantly misrepresents reality.

Either way, none of this dog and pony show is much of a surprise. You certainly wouldn't expect Senator Leahy to call one of the people who had their sites illegally seized to hear their side of the story. I mean, that might be embarrassing to actually hear that there's more than one side to this. He might have to hear about how the content creators themselves sent the content in question to these sites, and how the ICE affidavit to seize them misstated the facts of whether or not the content was infringing. He might have to hear how ICE didn't even ask the actual copyright holders, in most cases. He might have to hear how ICE doesn't seem to understand the technology, and doesn't seem to understand the difference between linking and distribution. He doesn't have to hear about how hardworking people who helped promote new artists and build their careers now live in fear of their own government. He doesn't have to hear about how these people are afraid to speak out, because the Justice Department has told them that if they do, they may face criminal charges.

No, it's easier to put on a show and pat yourself on the back for censoring those people and pretend that you've done something productive.

Filed Under: censorship, copyright, dhs, domain seizures, erik barnett, free speech, ice, patrick leahy, victoria espinel

ICE Stalling On More FOIA Requests Concerning Domain Name Seizures

from the and-of-course dept

We recently noted that Homeland Security's ICE group appeared to be stalling in responding to a Freedom of Information Act (FOIA) request from Michael Robertson's NakedGovernment. It turns out that's not the only such request it's been stalling on. The folks over at Muckrock (who helped us with our own FOIA requests), alert us to the news that Aaron Swartz, the director of Demand Progress (the organization that the MPAA has been trying to smear with false accusations), filed a similar FOIA request at about the same time. There were apparently some issues with it, but those issues were resolved in February... and since then, not a peep out of ICE.

Filed Under: dhs, domain seizures, foia, ice, stalling
Companies: demand progress