Puerto 80 Responds Forcefully To DOJ's Claims Concerning Domain Seizures

from the government-overreach dept

While Puerto 80 has already appealed the rejection of its attempt to get back its domain names (the two rojadirecta domains that Homeland Security seized), the separate case, involving the permanent forfeiture of those domains, continues. As you may recall, Puerto 80 put forth its motion to dismiss, noting that the government appeared to be wholly making up a legal standard that doesn't exist, while also showing that Puerto 80 did not break criminal copyright law. The government responded bizarrely by trying to argue that Puerto 80's actions don't really matter, because it's not about Puerto 80... and then spent most of its brief explaining why Puerto 80 did things that broke the law.

Now Puerto 80 has responded, and this time it's coming out even more forcefully against the government, explaining how its theory for seizure and forfeiture is absolutely ridiculous, and would effectively allow the government to seize all sorts of property if it so chose, including any search engine domain, any telephone network infrastructure, any electrical company's infrastructure -- just because such tools could be shown to have been used by someone, somewhere, possibly for illegal purposes, even if the company in question had nothing to do with it:

The government’s view of its powers under the civil forfeiture law, articulated for the first time in its opposition to Puerto 80’s motion to dismiss, is breathtaking. In the government’s view, it doesn’t need to allege that Puerto 80 violated any law, or even engaged in any civil wrong, in order to seize and shut down its Internet domain name. As long as the government thinks that someone, somewhere in the world, is engaged in copyright infringement, it believes it is entitled to seize any asset that might be connected to that infringement, whether or not the owner engaged in any wrongdoing, and whether or not that asset in fact “facilitated” the commission of any crime. And it further believes it is entitled to seize Internet domain names and shut down protected speech without ever having to prove that the speech was, in fact, unlawful, much less that the owner of the asset was responsible for any crime.

On the government’s view of its powers, it is entitled to seize the Google, Bing, or Yahoo web site, because someone, somewhere, has used those sites’ search engines to find infringing content. It is entitled to seize Verizon’s telephone network for the same reason. It is entitled to seize the power company, since numerous crimes are “facilitated” by the use of electricity. And the only reason the government lost the Pentagon Papers case, New York Times Co. v. United States, 403 U.S. 713 (1971), is that it asserted the wrong statute. Had the government simply seized the New York Times’ printing presses, pointing out that they were being used to “facilitate” the disclosure of government secrets, it would have been able to block the disclosure of Daniel Ellsberg’s secrets.

As the filing notes, "this cannot be the law." And, almost certainly, it's unconstitutional.

The full filing (embedded below) is fantastic. It no longer dances around the issue and flat out points out that the government's argument is incoherent, pulling different actions from different actors together to try to pretend that a single party did something wrong.

But in attempting to argue its new “facilitation” theory, the government cites to different acts by different actors (Puerto 80, other websites that are streaming content, and unidentified users who follow links to the content) for different elements of the alleged offense. Not only does this approach render the government’s opposition brief incoherent; it does nothing to change the fact that the Complaint fails to plead the elements of criminal copyright infringement by Puerto 80 or any other actor.

Specifically, Puerto 80 points out that in order to show criminal copyright infringement, the government needs to show that a party willfully infringed for profit. But it doesn't do so. It shows that some people may have infringed. And it shows that Puerto 80 may have profited. But it does not (and cannot) show that Puerto 80 itself willfully infringed for profit. In fact, it doesn't even try, because it knows that Puerto 80 itself did not infringe directly.

Finally, Puerto 80 points out that even if the government's argument is accurate, then the law must be unconstitutional:

Under the government’s newly-raised construction of the statute, the government may use the forfeiture statute to make an end-run around the First Amendment by seizing a lawful channel of communication. Such a seizure prevents lawful speech, and constitutes a prior restraint on that lawful speech. The government’s suggested construction of the forfeiture statute would render it unconstitutional, and should therefore be rejected.....

[....]

If the government’s theory of “facilitation” were adopted, the government would be permitted to shut down a search engine, website, newspaper, and printing press not just prior to a determination of the illegality of the content, but without ever having to show that it was operating unlawfully. It would permit, for instance, the government to shut down an entire printing press and newspaper for running an advertisement that contained allegedly infringing content. Or it would permit the seizure of a search engine because of its indexing allegedly infringing material. Such actions are plainly unconstitutional.

It's nice to see Puerto 80 hitting much harder on these key points, which it seemed to skirt around in the earlier filings. I'm wondering if the Justice Department even realizes how screwed up the argument it's trying to make really is. It never shows any criminal copyright infringement, but then says it can simply seize a domain because of some criminal copyright infringement which doesn't even appear to exist. The whole thing is incredible. Hopefully the court recognizes this and smacks the Justice Department around a bit for its ridiculous claims in trying to take these domains.

Filed Under: copyright, criminal copyright infringement, doj, domain seizures, forfeiture, rojadirecta, seizures
Companies: puerto 80, rojadirecta

Puerto 80 Appeals: Asks Court To Recognize That Trampling The First Amendment Is Substantial Harm

from the and-here-we-go dept

We had just noted that the government had replied to Puerto 80's motion in the Justice Department's attempt to forfeit the two Rojadirecta domains it had seized earlier this year. In it, we wondered if Puerto 80 was also going to be appealing the earlier ruling from the court refusing to return the domains, saying that Puerto 80 failed to show that a First Amendment violation represented "substantial hardship." It turns out that Puerto 80 is in fact appealing that ruling, as the filing embedded below shows.

To understand what's going on, you have to dig a little bit into the laws around seizure and forfeiture. While similar and related, they're two separate things. Seizure is the preliminary effort, in which the government, with some sort of (often rubberstamped) court approval, goes and takes something. There are specific rules around that, and while the laws are not perfectly clear, it does seem to suggest that the purpose of seizure in most cases is to hold evidence for a future trial, with the thinking being that leaving it in the hands of criminals could mean that the evidence might disappear. Forfeiture is a process that often follows seizure, in which the government makes its case that it should get to permanently keep some property. In many (but not all) cases, the government seizes first, and then forfeits later, in two separate processes.

In the Rojadirecta case, Puerto 80 initially challenged the seizure, including on First Amendment grounds, arguing that seizing such a domain without an adversarial hearing represented a classic case of prior restraint. In response, about a week later, the government then went forward with the separate process of filing to be able to keep those domains via the forfeiture process. So there were actually two parallel processes going on -- one about seizure and the other about forfeiture.

The specific filing against the seizure asked for the domains to be returned, which is allowed under seizure laws if the owner of the property can show "substantial hardship" from the government retaining the property. The judge ruled that a First Amendment violation did not count as a substantial hardship, and that it was the wrong time to raise the First Amendment anyway, suggesting it was better off being raised during the forfeiture fight that was about to start. What we've been writing about this week was the forfeiture fight, since the judge "closed" the seizure part with that previous ruling.

However, even as the forfeiture process is ongoing, Puerto 80 is now officially appealing the ruling on the seizure part of the case and arguing, compellingly, that the seizure itself was prior restraint and that a First Amendment violation is, without question, a "substantial hardship," contrary to the court's original claims. Not surprisingly, Puerto 80 relies on the Fort Wayne Books vs. Indiana case that is pretty damning to the government's rationale:

In Fort Wayne, state and local officials (respondents) filed a civil action pursuant to Indiana’s RICO laws, alleging that the defendant bookstores had engaged in a pattern of racketeering activity by repeatedly violating Indiana’s obscenity laws. 489 U.S. at 50-51. Prior to trial, respondents petitioned for, and the trial court granted, immediate seizure of the bookstores pursuant to a state law that permitted courts to issue seizure orders “upon a showing of probable cause to believe that a violation of [the State’s RICO law] involving the property in question has occurred.” Id. at 51. On appeal, the Supreme Court held that the pretrial seizure order was unconstitutional, stating that “mere probable cause to believe a legal violation has transpired is not adequate to remove books or films from circulation.” Id. at 66. As in Fort Wayne, the government here has seized an entire business and effectively suppressed all of the expressive content hosted on it, including political discussions, commentary, and criticism by the site’s users— without it being determined whether the seizure was “actually warranted” under the relevant statutes. Id. at 67.

The prior restraint on Puerto 80 users’ and readers’ First Amendment rights constitutes irreparable harm of the highest order. The Supreme Court has held that “[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); see also Bery v. City of New York, 97 F.3d 689, 693 (2d Cir. 1996) (“Violations of First Amendment rights are commonly considered irreparable injuries for the purposes of a preliminary injunction.”). In CBS, Inc. v. Davis, the Supreme Court stayed the lower court injunction that prohibited CBS from broadcasting video footage documenting unsanitary practices in the meat industry, finding that such prior restraint caused “irreparable harm to the news media that is intolerable under the First Amendment.” 510 U.S. 1315, 1315-16, 1318 (1994) (emphasis added). The deprivation of Constitutional rights is, therefore, ipso facto irreparable injury and subject to expedited review.

In the instant case, the government effectively shut down an entire website, suppressing all of the speech hosted on it, based on an assertion that there was probable cause to believe that some of the material linked to by the website (though not found on the website itself) might be infringing. Puerto 80 was not provided any advance notice, nor was it provided the opportunity to contest the seizure before (or, for that matter, shortly after) the government shut down the site. Nor were the site’s users afforded any notice or opportunity to contest the seizure. That procedural failing itself indicates that the government’s action was an unlawful prior restraint. “[T]he lack of notice or opportunity to be heard normally renders a prior restraint invalid.” United States v. Quattrone, 402 F.3d 304, 312 (2d Cir. 2005) (citing Carroll v. President & Comm'rs of Princess Anne, 393 U.S. 175, 180 (1968)).

The filing at this point is mainly to convince the court to accept an "expedited appeals" process, rather than a full filing on the reasons why the seizure was prior restraint and why prior restraint is a substantial hardship, but it certainly presents the basics of the argument. What the case may come down to is a question of whether or not "irreparable injury" is the equivalent of "substantial hardship." Not surprisingly, I would argue that an irreparable injury that involves stomping on someone's First Amendment rights is a very substantial hardship. So far one judge has disagreed. We'll see what happens on appeal.

Filed Under: copyright, criminal copyright infringement, doj, domain seizures, forfeiture, free speech, prior restraint, rojadirecta, seizures
Companies: puerto 80, rojadirecta

DOJ: This Case Has Nothing To Do With Puerto 80; Now Here Is Why Puerto 80 Is Guilty

from the dance-doj-dance dept

Following Puerto 80's motion to dismiss the attempt by the US government to forfeit its domains, the Justice Department has filed its response (pdf) in which it more or less mocks Puerto 80's lawyers for "not understanding" what they're fighting about in court. Having read both of the documents and being familiar with the case, I will agree that there is certainly some confusion (perhaps on both sides) about the exact nature of the arguments, but it appears that the government is partly the cause of this, in that it keeps leaping back and forth between arguments, since it can't make a single coherent argument for why forfeiture makes sense under the law.

Specifically, the government is claiming that its sole reason for trying to forfeit the domain (and for seizing it in the first place) is that "those domain names themselves facilitated the commission of a recognized crime." That is, it argues that Puerto 80 is wasting its time in suggesting that Puerto 80 did not engage in criminal copyright infringement, because the government has not charged Puerto 80 with anything. It's just claiming that the domains themselves are property used to commit a crime, and therefore can be forfeited.

But the government seems to want to have its cake and eat it too. That's because, in order to show that the domains were used to commit a crime, it keeps going back to actions done by Puerto 80. But then, when Puerto 80's lawyers keep explaining why Puerto 80 did not violate the law, the government tries to claim that this is meaningless because it's not accusing Puerto 80 of anything.

Talk about a disingenuous Catch-22 sort of argument.

For example, here's the kind of mocking that the DOJ presents against Puerto 80:

Despite what Puerto 80 appears to believe, the Government has neither charged Puerto 80 with a crime, nor has it filed a civil lawsuit against that company. Instead, and as the Complaint makes absolutely clear, the Government has brought a civil action against certain property an in rem proceeding against two domain names that facilitated the commission of criminal copyright infringement and are thus subject to forfeiture pursuant to Section 2323(a)(I) of Title 18, United States Code.

But... then... in making its case, the government still relies on actions of Puerto 80 and not the domains in question. Even worse, contrary to what the DOJ states, nowhere does it make the case that criminal copyright infringement occurred. Now, as we've stated before, for criminal copyright infringement to occur, and as the government clearly states in its filing, the government needs to show:

(1) the existence-of a valid copyright; (2) an act of infringement of that copyright; (3) willfulness on the part of the infringer; and (4) either that (a) the infringement was for purposes of commercial advantage or private financial gain, or (b) the infringer reproduced or distributed, during any 180-day period, one or more copies or phonorecords of one or more copyrighted works, with a total retail value of more than $1,000.

(1) and (2) aren't hard to show -- but the infringement is done by third parties (users of the site) rather than Puerto 80. In fact, the government even admits multiple times that the content is not hosted or distributed by Puerto 80, but by third parties. (3) is much, much trickier, and the government fails to show willfulness at all -- except to insist that Puerto 80 had willingness to infringe. Again, note that the government goes back to focusing on Puerto 80 here, even though it keeps insisting that it's not on trial. Even worse, it fails to respond to the pretty clear claims by Puerto 80 in its filing that its actions were clearly not willful since it had been tried and found not guilty of infringement twice in its home country. And yes, as people will point out, we're talking about US law, rather than Spanish law, but it's pretty ridiculous to think that Puerto 80 would go through such a huge legal process at home... and then somehow still think that it was willfully infringing on copyrights.

Point (4) is where an even bigger problem sets in. Once again, the DOJ focuses on Puerto 80 getting commercial gain:

With respect to private financial gain, the Complaint makes clear that when an Internet· user selected an individual link to a particular sporting event from the Rojadirecta website and the corresponding stream of the telecast began to run, advertisements that were separate and distinct from any commercials that may have been aired during the stream of the sporting event broadcast were periodically displayed at the bottom of the video during the live stream. (Compl. ~ 14c). On a motion to dismiss, this Court is required to draw all inferences from the allegations of a complaint in the light most favorable to the plaintiff. Roth, 489 F.3d at 510. It is certainly a permissible inference for this Court to draw that these advertisements generate revenue and result in private financial gain.

All of that is accurate... but again, it's about Puerto 80 who (again) the DOJ insists is not being sued here. Basically, the government totally fails to properly allege criminal copyright infringement, in that it doesn't show how those four elements all take place by a single party. Instead, they pull from here and there to patch together such a claim. A user of Rojadirecta may infringe... and Rojadirecta may profit from an ad shown on the site, but that's not willful copyright infringement for the purpose of financial gain. Furthermore, as the MP3Tunes case recently showed, merely having ads near infringement is not profiting from infringement: "However the financial benefit must be attributable to the infringing activity.... While Sideload.com may be used to draw users to MP3tunes.com and drive sales of pay lockers, it has non-infringing users." Merely the fact that infringing content can "draw" users to the site doesn't mean that the profit is directly from infringement.

So, while it is true that Puerto 80's lawyers may have argued for much more than the specific issue at stake in this case, it's in part because the DOJ itself keeps shifting its argument. It can make cases for civil infringement against users. It might be able to make a case for civil inducement for Puerto 80... but what it's doing -- quite amazingly -- is mashing together both of those arguments to pretend that two separate civil issues chopped up together can adequately show criminal copyright infringement... and from that they can claim that the domains were used for such things.

If anything, it seems that Puerto 80's lawyers were too clever in arguing ahead of the DOJ, who I'm still not entirely convinced understands what it's really arguing here. Puerto 80's lawyers didn't just try to show that no full criminal copyright claim was presented by the government. It also tried to debunk the two parts of the (4) factors that the DOJ tried to pin on Puerto 80. The government then says it doesn't care what Puerto 80 did, even as it uses its own questionable claims of what Puerto 80 did to make its case. It's really quite stunning.

On a separate note, even though Puerto 80's lawyers chose not to use the First Amendment claim, the Justice Department seems to be begging for it. As we've noted in the past, the ruling in Fort Wayne Books v. Indiana makes it clear that a standard higher than probable cause needs to be used in seizures:

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.

But here the government is arguing in the other direction saying the standard is even lower than probable cause! It's saying that it just needs "reasonable belief," now that the case has moved on to the forfeiture stage, rather than just discussing the seizure:

Nor is the Government required to show probable cause for forfeiture. See,~, Daccarett, 6 F.3d at 47. Instead, the complaint simply needs to establish a "reasonable belief' that the government will be able to meet its burden at trial. Id. "In other words, the complaint need not allege facts sufficient to show that specific property is tainted, but facts sufficient to support a reasonable belief that the government can demonstrate" the ultimate trial burden "for finding the property tainted."

I'm at a loss to see how this makes any sense at all. Remember, the judge in the case has already said that Puerto 80 can't challenge the seizures on First Amendment grounds, because trampling your First Amendment rights is not a "substantial hardship." That, alone, seems like something that should be appealed. But it also seems like it wipes out any avenue for challenging the seizure on First Amendment grounds, because the standard now being discussed is merely "reasonable belief." Now, it is true that this is just for the motion to dismiss, and the standard at trial is going to be higher, but, honestly, why should a trampling of free speech have to wait so far into the process before being resolved? Plenty of other cases are willing to put the First Amendment issue upfront and center...

Filed Under: copyright, criminal copyright infringement, doj, domain seizures, forfeiture, rojadirecta, seizures
Companies: puerto 80, rojadirecta

Feds Say They Can Search Bradley Manning's Friend's Laptop Because They Can

from the leave-us-alone dept

Back in May, we noted that Homeland Security's ICE group had taken David House's laptop and had kept it for 49 days because he's friends with Bradley Manning, who is accused of leaking the State Department cables to Wikileaks. House was traveling back to the US from a vacation in Mexico and Homeland Security has long held that it can take your laptops at the border for any reason whatsoever. House (with the help of the ACLU) sued the government over this. Not surprisingly, the Justice Department is defending the actions of ICE, basically using the "we did it because we can, so shut up" argument.

There is no basis for the Court to conclude that searches of laptops or other electronic devices at the border should be subjected to a different standard than that for other closed containers. Nor is there a basis for the Court to conclude that Plaintiff’s First Amendment rights were violated by the routine search and detention of his devices at the border.

This is, at best, disingenuous and, at worst, dishonest. There is a tremendous "basis" for a court to conclude that searches of electronic devices differ than searches of a closed container. That's because, as we've discussed at length before, what's in your laptop and what's in a container at the border are entirely different:

• You mostly store everything on your laptop. So, unlike a suitcase that you're bringing with you, it's the opposite. You might specifically choose what to exclude, but you don't really choose what to include. With a suitcase, you specifically choose what to include.
• 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.

More to the point: the reason why ICE is supposed to be stationed at the border is to stop those who should not be in the country and to prevent items that should not be in the country from getting it. It is abundantly clear that taking House's laptop furthered neither of those goals, but instead it was done solely in an attempt to further an unrelated legal claim by the government (the case against Manning). It seems crazy to me that the courts do not seem to take into consideration the purpose of a border search in determining whether or not they are appropriate. This border search had nothing to do with the border and everything to do with the feds using a questionable opportunity to seize data that it could not otherwise get access to via legal means. If House's laptop were really crucial to the case, then the Justice Department should have gotten a warrant to view it, rather than use this loophole at the border. The fact that they did not get a warrant shows pretty clearly that they knew outside of the border situation, they had no right to look at the contents of House's hard drive.

On a separate note, the reason given for having to keep House's laptop for so long? Because the laptop ran both Linux and Windows and the tech geniuses at Homeland Security had trouble understanding how to deal with that.

Filed Under: 4th amendment, bradley manning, david house, free speech, laptops, privacy, seizures

So The FBI Can Just Take A Copy Of All Instapaper User Data With No Recourse?

from the that-doesn't-seem-right dept

We recently wrote about the FBI's server seizures in the hunt for LulzSec, noting the collateral damage that took down servers of a few different popular websites. One of the seized servers was a backup server for the very popular service Instapaper, which many people use to save web pages and other info. While Instapaper's Marco Arment notes that the FBI did return the server relatively quickly, it's possible that the FBI now has a copy of pretty much everyone's Instapaper data, which could reveal a lot about some people.

Possibly most importantly, though, the FBI is now presumably in possession of a complete copy of the Instapaper database as it stood on Tuesday morning, including the complete list of users and any non-deleted bookmarks. (“Archived” bookmarks are not deleted. “Deleted” bookmarks are hard-deleted out of the database immediately.)

Instapaper stores only salted SHA-1 hashes of passwords, so those are relatively safe. But email addresses are stored in the clear, as is the saved content of each bookmark saved by the bookmarklet.

The server also contained a complete copy of the Instapaper website codebase, but not the codebase of the iOS app.

Linked Facebook, Twitter, or Tumblr accounts only store their respective OAuth keys. Linked Evernote accounts only store the Evernote email-in address. Linked Pinboard accounts, however, store plaintext usernames and encrypted passwords, and the encryption keys are present in the website source code on the server.

So the FBI now has illegal possession of nearly all of Instapaper’s data and a moderate portion of its codebase, and as far as I know, this is completely out of my control.

Marco is quite reasonably pissed off at the hosting company, DigitalOne, who never contacted him about this (before or after the raid, including up until the blog post, days later). Frankly, that's unconscionable. For an ISP to simply not tell their customer that a server has been seized? Marco is also upset that DigitalOne didn't do anything to stop the seizure. Now, on both of those accounts, it's possible that DigitalOne's hands were tied. There's not much they can realistically do if the FBI shows up with a seizure warrant, even if it's super broad. And we have seen the FBI use gag orders barring ISPs from talking about what was seized.

But, really, that just goes to show, yet again, the problems of such government seizures with no prior adversarial hearings. I recognize that they're looking for evidence that might disappear, but the chance for serious collateral damage, including potentially serious privacy violations, seems pretty high. I'm not sure there's anything he could do, but it certainly would make for an interesting lawsuit if either Marco or an Instapaper customer decided to sue the federal government over these seizures.

Filed Under: datacenter, fbi, privacy, seizures
Companies: instapaper

Rojadirecta Sues US Government, Homeland Security & ICE Over Domain Seizure

from the with-top-notch-legal-support dept

This morning, we wrote about the list of sites that ICE knew was challenging its domain seizures, and some people complained that there still were no details. There's been a lot happening behind the scenes, but the first bit of public information is now available, as the company behind Rojadirecta, Puerto80 has officially filed suit against the US government, demanding the return of its domains. Not only that, but it's brought on some top notch legal talent to help them. The company is represented by Ragesh Tangri and Mark Lemley from Durie Tangri. If you're at all familiar with intellectual property law, you know who Lemley is, and know the level of respect he gets within intellectual property circles. In fact, it's interesting to note that one of Lemley's papers is one that we've seen frequently cited by those who believe the domain seizures are legal. The fact that he's arguing on the other side seems pretty telling.

As for the filing itself, it details the stalling by the US government that we pointed out last month:

Contrary to the grounds on which the domain names were seized, the Rojadirecta site is not violating copyright law, let alone criminal copyright law. Rojadirecta explained this to the government when, on February 3, 2011, it sent ICE and the Department of Justice a letter requesting immediate return of the subject domain names pursuant to 18 U.S.C. § 983(f). Following that letter, counsel for Puerto 80 Projects, S.L.U. (“Puerto 80” or “Petitioner”), the company which owns the sites, repeatedly tried to discuss the seizure with the government, but was unable to engage with the government until it notified the U.S. Attorney’s Office of its intent to seek a temporary restraining order and file a petition for immediate return of the seized domain names. It was not until then that Puerto 80 was able to have a substantive conversation with the appropriate officials. Hoping to avoid burdening the court, Puerto 80 held off filing the instant petition pending the outcome of those negotiations. On May 26, 2011, the government informed counsel for Puerto 80 that the only acceptable “compromise” would entail Puerto 80 prohibiting its users from linking to any U.S. content anywhere on its sites. Because this “solution” would prohibit Puerto 80 from engaging in lawful acts not prohibited by copyright law, Puerto 80 chose instead to challenge the seizure in court.

The filing notes that it is asking the court to speed up the process, as it tried to be patient, but the delays in reclaiming the domain are harming Puerto 80's business. It also notes that "in hopes of avoiding having its property tied up in lengthy forfeiture proceedings, Puerto 80 decided to engage in good faith negotiations with the government and held off filing the instant petition pending the outcome of those discussions." It then lists out all of the detailed attempts to get the domains back. It involves multiple attempts by Puerto 80's lawyers to discuss this with the Justice Department, and as we heard from pretty much all the sites in this process, talking to anyone substantial proved to be quite difficult. It also notes that "the government attempted to dissuade Puerto 80 from filing anything in district court." That supports our contention that the government really wanted to avoid a legal challenge...

As for the specific legal arguments, it starts out by pointing out that under the rules for seized property, there are certain conditions under which the seized property should be returned -- with a key one being that "the property will be available at the time of the trial." As we've discussed at length, the key official reason for seizures is to preserve evidence. That's why this is a key element here: if the evidence will be there, there is no reason for the seizure.

Then out come the big guns, starting with the claim (as we've suggested in the past) that the seizure represents unlawful prior restraint (i.e., a violation of the First Amendment). Here's a big chunk of the filing, included in its entirety (minus footnotes), because it's quite interesting:

The seizure imposes another hardship on Puerto 80, in that it constitutes an invalid prior restraint and suppresses its users’ and readers’ protected First Amendment activities. See Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 63 (1989) (“[W]hile the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause . . . ., it is otherwise when materials presumptively protected by the First Amendment are involved.”). See also Maryland v. Macon, 472 U.S. 463, 468 (1985) (“The First Amendment imposes special constraints on searches for and seizures of presumptively protected material, and requires that the Fourth Amendment be applied with ‘scrupulous exactitude’ in such circumstances.”) (internal citation omitted); Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326, n.5 (1979) (noting that the First Amendment imposes special constraints on searches for, and seizures of, presumptively protected materials). In Fort Wayne, state and local officials (respondents) filed a civil action pursuant to Indiana’s RICO laws, alleging that the defendant bookstores had engaged in a pattern of racketeering activity by repeatedly violating Indiana’s obscenity laws. 489 U.S. at 50-51. Prior to trial, respondents petitioned for, and the trial court granted, immediate seizure of the bookstores pursuant to a state law that permitted courts to issue seizure orders “upon a showing of probable cause to believe that a violation of [the State’s RICO law] involving the property in question has occurred.” Id. at 51. On appeal, the Supreme Court held that the pretrial seizure order was unconstitutional, stating that “mere probable cause to believe a legal violation has transpired is not adequate to remove books or films from circulation.” Id. at 66. As in Fort Wayne, the government here has seized an entire business and effectively suppressed all of the expressive content hosted on it, including political discussions, commentary, and criticism by the site’s users—without it being determined whether the seizure was “actually warranted” under the relevant statutes. Id. at 67.

In Center for Democracy & Technology v. Pappert, 337 F. Supp. 2d 606, 619 (E.D. Pa. 2004), the Eastern District of Pennsylvania struck down, on First Amendment grounds, a Pennsylvania statute that permitted the state’s Attorney General or a district attorney to seek a court order requiring an Internet Service Provider (“ISP”) to “remove or disable items residing on or accessible through” the ISP’s service upon a showing of probable cause that the item constituted child pornography. The district court found that the statute imposed an unconstitutional prior restraint on speech. It concluded that under Fort Wayne Books and Bantam Books v. Sullivan, 372 U.S. 58 (1963), a court must “make a final determination that material is child pornography after an adversary hearing before the material is completely removed from circulation.” Pappert, 337 F. Supp. 2d at 657 (emphasis added). The court further noted that the state statute “allow[ed] for an unconstitutional prior restraint because it prevents future content from being displayed at a URL based on the fact that the URL contained illegal content in the past.” Id.

In the instant case, the government effectively shut down an entire website, suppressing all of the speech hosted on it, based on an assertion that there was probable cause to believe that some of the material linked to by the website (though not found on the website itself) might be infringing. The site’s owner was not provided any advance notice, nor was he provided the opportunity to contest the seizure before (or, for that matter, shortly after) the government shut down the site. Nor were the site’s users afforded any notice or opportunity to contest the seizure. Because case law is clear that “mere probable cause to believe a legal violation has transpired is not adequate to remove [protected material] from circulation,” Fort Wayne, 489 U.S. at 66, the seizure of the expressive materials in this case violates the First Amendment. See also Pappert, 337 F. Supp. 2d at 657 (finding that a procedure that permits a judge to make an ex parte finding of probable cause that material is child pornography, with no opportunity for the content publisher to receive notice or be heard, violates the First Amendment). This First Amendment deprivation extends not just to registered users of Rojadirecta, but also to anyone wishing to visit the website. See, e.g., Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc., 425 U.S. 748, 756 (1976) (“[T]he protection afforded is to the communication, to its source and to its recipients both.”); Red Lion Broad. Co. v. FCC, 395 U.S. 367, 390 (1969) (“It is the right of the public to receive suitable access to social, political, esthetic, moral, and other ideas and experiences . . . . That right may not constitutionally be abridged . . . .”).

If you want the key bit, it's from that third paragraph above. One of the footnotes also points out (as we've noted elsewhere) that the government appears to have made up, whole cloth, the idea that linking to infringing content can be seen as criminal infringement:

Indeed, several courts have held that the act of indexing and linking to copyrighted material— which was the government’s basis for seizing the domain names—is not direct or indirect copyright infringement. See Field v. Google Inc., 412 F. Supp. 2d 1106 (D. Nev. 2006); see also Ticketmaster Corp. v. Tickets.com, Inc., No. CV 99-7654 HLH(BQRX), 2000 WL 525390, at *2 (C.D.Cal. Mar. 27, 2000) (finding that hyperlinking to other sites does not constitute direct infringement); Arista Records, Inc. v. MP3Board, Inc., No. 00 CIV. 4660, (SHS) 2002 WL 1997918, at *4 (S.D.N.Y. Aug. 29, 2002) (unreported) (linking to content does not implicate distribution right and thus, does not give rise to liability for direct copyright infringement); Online Policy Group v. Diebold, Inc., 337 F.Supp.2d 1195, 1202 n.12 (N.D. Cal. 2004) (“Hyperlinking per se does not constitute direct copyright infringement because there is no copying.”).

Finally, the filing points out that the domain names did not meet the conditions set out under US law to qualify for seizure in the first place, saying that it is not contraband, evidence, "particularly suited for illegal activities" or "likely to be used to commit additional criminal acts." That last one, I assume, is the one that most supporters of the seizures will take issue with, but, the argument is again laid out in tremendous detail:

Puerto 80 does not host any infringing material on the websites which operate under the subject domain names... In the same way a search engine or other site which aggregates links to existing material on the Internet, Rojadirecta provides an index of links to streams of sporting events that can already be found on the Internet through a search for those sites or simply by typing the URL for the site directly. Id. Such activity does not constitute direct copyright infringement, much less criminal infringement. See supra, at note 8. Indeed, United States Senator Ron Wyden (D-Or) made this point in a letter he wrote to ICE Director John Morton and Attorney General Holder expressing concern over the government’s seizure of the subject domain names....

Puerto 80’s operation of the Rojadirecta site does not constitute contributory infringement because the subject domain names are capable of—and are, in fact, used for— substantial non-infringing uses. Sony Corp. v. Universal City Studios, Inc., 464 U.S. 417, reh’g denied, 465 U.S. 1112 (1984); Arista Records LLC v. Lime Group LLC, 715 F. Supp. 2d 481, 517-18 (S.D.N.Y. 2010) (summary judgment inappropriate where material fact existed as to whether file-sharing program, which was “used overwhelmingly for infringement,” is “capable of substantial non-infringing uses.”).

Nor is Rojadirecta a site devoted simply to linking to such streams. In addition to providing a forum for discussion on sports, politics, and a variety of other topics, the Rojadirecta site enables users to post links to authorized sports broadcasts. For example, on Saturday, February 12, 2011, the Rojadirecta site (hosted on the rojadirecta.es domain name) provided a link to “9:30am Hockey (NHL): Los Angeles – Washington.”... Clicking on this link opened a new window for the Yahoo! sports website for the National Hockey League, and provided a live stream of the match between the Los Angeles Kings and Washington Capitals. Id.

Nor does Puerto 80’s operation of the Rojadirecta site constitute vicarious liability because it does not have “a right and ability to supervise that coalesce[s] with an obvious and direct financial interest in the exploitation of copyrighted materials.” Softel, Inc. v. Dragon Med. & Sci. Commc’ns Inc., 118 F.3d 955, 971 (2d Cir. 1997) (quoting Shapiro, Bernstein & Co. v. H.L. Green Co., 316 F.2d 304, 307 (2d Cir. 1963) (emphasis added)). Puerto 80 does not receive any revenue that is derived from specific content hosted on, or streamed by, the sites to which it links.... In other words, Puerto 80 does not receive any revenue from any site to which a user can link from the subject domain names based upon the content of that site. Id. To the extent there is any site to which Rojadirecta links that contains infringing material, Puerto 80 receives no specific financial benefit from a user clicking through to that site and viewing such content.... Because Puerto 80’s revenues are not tied to whether or not infringing material is linked to or accessed, the government cannot show that Puerto 80 has a “direct financial interest in the exploitation of copyrighted materials” which “coalesce[s] with” any right or ability to supervise what is linked to on the site. See Artists Music, Inc. v. Reed Publ’g (USA), Inc., Nos. 93 civ. 3428(JFK), 73163, 1994 WL 191643, at *6 (S.D.N.Y. May 17, 1994) (direct financial benefit not established where defendant leased space at a trade show for a fixed fee to exhibitors who played infringing music, but defendant’s revenues were not dependant on whether exhibitors actually played music or what they played); Viacom Int’l Inc. v. YouTube, Inc., 718 F. Supp. 2d 514, 521 (S.D.N.Y. 2010) (in DMCA safe-harbor context, “financial benefit directly attributable to the infringing activity” not established “where the infringer makes the same kind of payment as non-infringing users of the provider’s service”) (quoting Senate Judiciary Committee Report and the House Committee on Commerce Report, H.R. Rep. No. 105-551, pt. 2 (1998)).

Furthermore, the filing points out that the government totally failed to meet the requirements to show criminal copyright infringement, and notes that the government cannot show that Rojadirecta meets those requirements.

The full filing is embedded below, but I've pulled out most of the key points above... Earlier this morning we had supporters of the domain seizures insist that no one was actually filing lawsuits in the US over this. It will be interesting to see how they respond to this particular filing.

Filed Under: copyright, criminal copyright infringement, dhs, doj, domain seizures, ice, mark lemley, rojadirecta, seizures
Companies: puerto 80

Is Pretending Your Domain Name Has Been Seized By ICE The New Rickroll?

from the meme-me dept

Back during the February domain seizures by ICE, before ICE had officially announced which domains had been seized, we saw some stories that named a few of the sites. So we contacted one of the administrators for one of the sites in question, which showed the "seized" graphic on it, asking about the guy's intentions and how he would respond. We got back a really bizarre answer, and I began to to suspect that the guy was messing with us. That turned out to be the case, as ICE officially listed the sites and that guy's site wasn't included. Miraculously, his site went back to being the same old blog it was before, a few days later. Then, for April Fools, we were actually inundated with sites telling us they had been seized by ICE and we didn't run any of those stories, knowing they were bogus. Recently, that's been happening more and more often. There was the story about some conspiracy theory guy claiming his site had been seized by ICE, after being hacked and having infringing works uploaded. That turned out not to be true. And now, there's a story about the hacking group LulzSecurity made their own website look like it had been seized by ICE.

Both of these later stories involved bewildered ICE spokespeople trying to figure out why the press was calling them and insisting that no such domains had been seized at all.

But all of this makes me wonder if "my site's been seized by ICE" is becoming a meme, a la the rickroll, in which sites looking for attention suddenly pretend that they were seized by ICE. At best, this seems to suggest that, for all of ICE's insistence that this program has been a massive success in "informing" the public, an awful lot of people associate the ICE seizures with being a total joke, ripe for mocking. It certainly seems to detract from the message that ICE is trying to send. Separately, this does make me wonder if one of these pranks is going to get someone in trouble at some point. It's pretty silly, but the federal government gets all upset when you use their various logos and seals without permission...

Filed Under: ice, meme, seizures

Why We Haven't Seen Any Lawsuits Filed Against The Government Over Domain Seizures: Justice Department Stalling

from the running-scared? dept

We've been covering the various illegal domain seizures by the US government quite a bit, and with the latest round, I did want to loop back on one point: how come none of the seized sites have sued the government yet? We've heard a few times that the lack of lawsuits from those who have had their domains seized is "evidence" that they know the seizures were legal and that they would lose any court case. I began to wonder about this myself, and spent the last two weeks contacting people on all sides of these cases and found the answer to be exactly the opposite: it's not the site holders who are scared. It's the Justice Department, and they seem terrified to have one of these cases actually go to court.

What was really incredible was how everyone I spoke to involved in these cases (even though not at all connected with one another) had an identical story: they'd all love to take their cases to court, but they're waiting for the government to actually get in touch with them. If it was just one site, there would be no story. But I spoke to people associated with many sites, and the story was nearly identical. To hear John Morton and other proponents of domain seizures talk about it, it's "easy" for the owners of seized sites to protest and file suit against the government over the seized sites. Tragically, the reality has turned out to be quite different. Many of the sites were not even officially notified about the seizure until months later. Prior to that, they weren't even told what the sites were accused of, let alone who was doing the accusations. You try responding to a government action against you completely blind. You don't know who you're suing or for what.

Even once notified, the "notification" often came in the form of an "offer" from the government to effectively give up any and all legal claims against the government. From there, the process sounds like something out of the movie Brazil. Any attempt to speak to the government has been met with either a total lack of response or directing people to someone else, who then won't respond. Some of the people navigating this situation said it took months just to figure out who in the government they should be discussing the issue with -- and once it was figured out, actually getting those individuals to respond to basic questions that are normally answered as a matter of course in discussions prior to any litigation, has been an exercise in futility.

Basically, the same story was heard over and over again: the Justice Department doesn't seem to want these lawsuits to proceed and is stalling as much as possible and trying to avoid the legality of the seizures from being tested. At the same time, the site holders are eager to take these issues to court and are tremendously frustrated and distressed over the idea that the US government can simply seize domains without hearing, notice or effective process of appeal. However, nearly all of them expect that it will eventually end up in court (though one suggested that we might all be dead before a case moves forward at this rate).

Of course, I reached out to the government as well. I spoke to the press office of the part of the Justice Department involved in these cases, and beyond pointing me to the press releases they put out, they had no comment. I asked if there was an official process to protest domain seizures and was promised they'd get back to me. It's been a week and no one has gotten back to me. Separately, I reached out to people in other parts of the government that are heavily involved in the seizures, and despite multiple people promising to respond with details of the process, or to pass on my question to others who might know the process, days have gone by with no further response.

So, apparently it's "easy" to protest these seizures, but the people most involved in these seizures don't want to even let us (or those who it matters most to!) know what the process is. After talking to so many people on this, it's become abundantly clear that the lack of lawsuits has nothing to do with the strength of the government's case, but the very opposite. Multiple site owners would like to file suit, but can't. The government, who insists that it's easy to protest their wholesale seizure of a domain without prior notice or hearing can't even provide me a straight answer to what the process is to protest such a seizure. It's almost as if the government never even expected anyone to want to protest such censorship and were totally caught off-guard by this.

But the real tragedy is for the folks who ran these sites. Even as many have found alternative homes, they're frightened and disillusioned by the US government. They don't feel they did anything wrong, and yet were blindly punished by the US government, declared as criminals with no clear recourse -- and when they sought out information or details, have been met with the bureaucratic equivalent of a brick wall. We can all disagree over whether or not these domain seizures are legal or productive, but I would hope we can all agree that those who have had their domains seized should at least have a clear path to protest their innocence if they believe that they did not commit the crime Homeland Security, the Justice Department and a magistrate judge already declared them guilty of committing.

Filed Under: domain names, justice department, legality, seizures

Friend Of Bradley Manning Sues Homeland Security For Seizing His Laptop

from the land-of-the-free dept

Connecting two separate stories we've been covering here, it appears that the ICE group of Homeland Security seized the computer equipment of David House -- a friend and supporter of Bradley Manning -- as he flew back into the country last fall. As you may recall, DHS/ICE have been pushing hard for the right to seize and search laptops at the border for any reason (or no reason at all). Courts have mostly said this is okay, with a few exceptions. In this case, DHS didn't return the equipment for 49 days, and that was only after House had the ACLU send a "strongly-worded letter" demanding the return of the equipment. Again, while the courts have generally deemed such searches to be okay, the ACLU appears to think that this particular search is a perfect example of why these searches are massively overreaching -- so it has teamed up with House to sue DHS and the US government.

It certainly could make for an interesting case and an interesting challenge to DHS's claims that it can ignore the 4th Amendment at the border. The ACLU seems to be suggesting that since the seizures of his devices had nothing to do with customs, immigration or terrorism, but were politically motivated, then they violate both the 1st Amendment and the 4th Amendment. It definitely makes for an compelling argument, but I'd guess the courts will (yet again) defer to the US government on this one and say it was okay.

Filed Under: 4th amendment, bradley manning, david house, free speech, laptops, privacy, seizures

Rep. Lofgren Again Explains How And Why Domain Seizures Violate The Law

from the and-another-lawyer dept

We had just pointed to a lawyer explaining why the domain seizures by the government were likely to be unconstitutional. That was in response to some of our commenters who insist that anyone who actually understands the law would clearly see that such seizures are perfectly fine. Well, here's another lawyer who disagrees -- and she also happens to be a Congressional Representative, Zoe Lofgren. Obviously, we've covered her basic concerns with these seizures, and now she's done an interview with Ars Technica, where she goes into much more detail. She notes that this appears to be outside of ICE's mandate. That the reasons behind the seizures were too broad (such as in the seizure of Torrent-Finder, a search engine, which suggests the government could just seize Google if it wanted to).

Lofgren correctly points out that falling back on the legality of seizures for things like drugs does not apply, because this is a First Amendment issue, and then points out that it appears to be prior restraint:

Ars: So how did these seizures differ from, say, narcotics seizures in which some of the same issues about a non-adversarial hearing apply?

Rep. Lofgren: You're never going to have a free speech issue when it comes to a pile of cocaine.

Ars: The recording industry also objected to the First Amendment concerns you raised, saying that the First Amendment is "not a shield for illegal behavior."

Rep. Lofgren: They completely missed the point, and I would think intentionally so. This is prior restraint of speech, and you can't do that in America.

Nice to see yet another "lawyer" speaking out about this, and especially nice that it happens to be someone in Congress, who can hopefully get more attention on this concerning subject.

Filed Under: defamation, domains, due process, first amendment, ice, seizures, zoe lofgren