RIAA Not Happy With Rep. Lofgren Calling Out ICE For Web Censorship

from the and-the-pressure-is-on... dept

We've covered how Rep. Zoe Lofgren is one of the only Representatives in Congress (along with Senator Wyden on the other side of the Capitol building), who appears to actually be concerned that Homeland Security's Immigration and Customs Enforcement (ICE) group is seizing web domains on questionable authority, without due process, and likely in violation of basic First Amendment rights against prior restraint. Of course, even with just one Congressional Rep. speaking out about this, apparently the RIAA wishes to stomp out any dissent. Yesterday, they sent Rep. Lofgren an unsolicited letter in response to her comments. You can see the full letter embedded below, but let's go through a few of the "highlights."

Online theft, particularly through websites dedicated to infringing our rights, is a terribly important issue for those who invest in the artists and music that entertains the world. Online theft has cost our industry, the broader entertainment community, and our economy billions of dollars and thousands of jobs.

Note the claim about the lost jobs and losses to the economy. These are the same claims that have been repeatedly debunked in the last few months. There are no direct losses from infringement. There is only the industry's failure to adapt with new business models for a changing market. Of course, even if we're feeling generous, and grant the RIAA's premise that there have been billions in losses here, is that really an excuse for ignoring due process and the First Amendment? Seems like an odd argument.

I would like to take this opportunity to respond to the reference in your comments at the hearing to a New York Times article regarding a site implicated in the U.S. Immigration and Customs Enforcement’s (ICE) domain name seizures that claimed it received some music directly from a record label. The implication of the article was that any action against this or similar sites would be inappropriate given its distribution of some potentially authorized content.

Actually, this paragraph is quite misleading on a variety of points. First of all, no one has implied that "any action" against these sites would be "inappropriate" just because they published some authorized content. If it's true that they were distributing unauthorized content in violation of the law, then action could very well be appropriate. What we're questioning is the type of action. That is, no actual lawsuit has been filed on the sites named in that NY Times article. Instead, the sites were simply seized with no due process, and in violation of the higher standard for the seizure of content found in Fort Wayne Books v. Indiana.

Secondly, I've seen the evidence. The same evidence the NY Times saw. It wasn't just that there was "some" authorized content, but that every single song that ICE used to claim probable cause of criminal infringement was authorized.

Furthermore, according to the affidavit for seizure, it appears that ICE relied solely on a false claim from the RIAA's own Carlos Linares that the four songs in question were, in fact, unauthorized. It's rather odd that the RIAA's letter makes no mention of this. It also fails to mention that one of the songs named was not by an artist signed to an RIAA label -- and yet Linares allegedly still had no qualms about claiming it was infringing, despite no right to speak for that artist. Seems like a pretty big oversight for the RIAA to skip that point.

The First Amendment serves as a safeguard for free expression but not as a shield for illegal behavior. If, as the U.S. Supreme Court has stated, "neither the press nor booksellers may claim special protection from governmental regulations of general applicability simply by virtue of their First Amendment protected activities," then neither should sites dedicated to theft just because they also host online conversation. The fact is that these sites are welcome to limit their offerings to only authorized material (including any music provided by a rights holder) and to public discourse. But no one should be allowed to continue to engage in illegal activity while hiding behind a facade of legitimacy

Once again, the letter presents a gross misrepresentation of what actually is going on. No one -- no one -- is claiming that these sites get any "special protection" because they "also host online conversation." We're saying they get the same First Amendment protections anyone else gets -- which means that if you believe they infringe, you sue them. You don't just have the government seize their property. On top of that, you especially don't have the government seize their property based on four songs that were actually authorized.

Also, it's rather amusing that the RIAA's letter "quotes" the Supreme Court but is quite careful not to either name the case it's quoting, or to put the quote into context. That's because it knows doing either of those things would undermine its argument here entirely. First, the quote itself comes from Arcara v. Cloud, the one case that supporters of this kind of censorship keep hanging their hats on. Of course, Arcara doesn't apply here, as we've discussed repeatedly. The ruling in Arcara is explicit: it only applies to crimes that "manifest absolutely no element of protected expression." But speech on websites is protected expression.

Makes you wonder why the RIAA would leave out the fact that the very case they're quoting explicitly says it does not apply to the situation we're discussing. Funny, huh?

As for the claim that sites shouldn't be allowed to "engage in illegal activity while hiding behind a facade of legitimacy" -- we agree. But, no one is claiming that here, other than the RIAA. The problem is that no one has shown that illegal activity occurred. Instead, all they showed was that the RIAA appears to have said the songs were infringing, when they were all sent by representatives of the copyright holder.

It all sort of makes you wonder if the RIAA's response here is even more about covering its own hide from the fact that it may have made false representations to federal officials in a criminal investigation.

As notable First Amendment scholar, Floyd Abrams, stated last month in a letter to the Senate Judiciary Committee with reference to such seizures, "Copyright violations are not protected by the First Amendment. Entities 'dedicated to infringing activities' are not engaging in speech that any civilized, let alone freedom-oriented, nation protects. That these infringing activities occur on the Internet makes them not less, but more harmful."

I am not familiar with the specifics of Abrams' claims, but I will argue that he is being misleading here as well (or the RIAA is being misleading in how it is quoting him). Oddly, we also just had to debunk Abrams' false claims about Wikileaks, in which he incorrectly claimed that Wikileaks had done things it had not. It appears that, once again, Abrams has been speaking without full knowledge of what's going on. First of all, no one is claiming that copyright violations are protected by the First Amendment. We're claiming that the the non-infringing speech is protected by the First Amendment. Furthermore, Mr. Abrams' claim that such sites are somehow not engaging in speech, suggests a near complete level of ignorance of how some of these sites functioned -- and the FACT that the labels themselves relied on these sites as part of their promotional strategies. If it were actually true that this was some sort of horrible, dangerous site that no civilized nation would protect... why were the labels using them to promote works?

Either way, the larger point is that Abrams and the RIAA appear to be playing a cheap game of misdirection here by focusing only on the claims of infringement and by ignoring the massive amounts of non-infringing speech. And, in the specific case of Dajaz1, the government has failed to prove any infringement. So, can the RIAA and Abrams explain how it is acceptable for the RIAA to falsely claim infringement, have a site shut down... and then pretend the site was dedicated to infringement?

Assuming the site referenced in the New York Times article you cited actually received some authorized copies of legitimate material doesn't excuse the criminal activity of making available thousands and thousands of copies of unauthorized material. In the physical world, if the government seizes a shipment of thousands of boxes of illegal goods, and the distributor of the illegal goods tries to cover itself by including a small portion of lawful goods on top, the seizure would not be improper.

This is partially true, but mostly misleading. The big problem, of course, is that the government failed to show any criminal activity on the part of Dajaz1. So, it's hard to see how they can claim seizing is okay. Separately, once again, when a seizure involves speech -- even speech that is unprotected, such as obscenity -- the law is quite clear (though the RIAA ignores this) in a whole bunch of cases, that a higher standard must be met to avoid prior restraint. No such bar was met.

Some have opposed recent seizures based on the claim that "they are ineffective anyway because the sites just pop right back up." Follow-up to the seizures that have occurred thus far indicate the opposite -- recidivism is low.

First of all, I haven't actually seen this claim made anywhere seriously, so I'm not even sure why the RIAA is bringing it up. But, more importantly, the claim that recidivism is low also appears to be (yet again!) misleading in the extreme. It may be true that there has been a low level of recidivism in the domains seized for trademark infringement/counterfeiting (still the majority of seizures). On that front, I haven't been following things as closely. However for the domains seized around copyright claims, a large majority of them came back online quite quickly, with most of the rest showing up soon after.

Finally, claims regarding a lack of due process under U.S. statutory procedure remain unfounded. The sites targeted by the government are reviewed by investigators, U.S. Attorneys, and judges. There is a thorough analysis and prosecutorial discretion is exercised by several parties. There has been no rush to judgment.

This one makes me laugh because the RIAA completely ignores the very case that Lofgren so importantly highlighted: the mistaken and illegal seizure of 84,000 innocent sites. They all went through that same "review." And it didn't work. That's because it's not an actual review and it's not actual due process. Having only one side (the government) "review" (really: rubber stamp) things is not due process. Due process means that the accused should be allowed a chance to respond before any protected speech is blocked. That's fundamental to US Constitutional law, and it's troubling that the RIAA would ignore that.

And, as you noted at the hearing, an aggrieved party can always challenge a wrongful seizure under due process provisions set in statute – although it is noteworthy that so far none of the hundred sites seized for conducting illegal activity has chosen to do that.

Due process does not mean the government seizes and then if you don't like it you get to protest later. As for the claim that none of the sites have yet chosen to take legal action, that's again incredibly misleading. First of all, the government did not even provide most of the sites with the necessary information until months later, and then many have spent the last few weeks scrambling to find lawyers willing to take on the US government on a pro bono basis (because, despite claims to the contrary by the RIAA, these sites are not huge moneymakers). That's not easy. However, I am aware of a few sites who have secured representation and are currently "discussing" these issues with the government. I'm sure the RIAA is aware of this as well, so it's misguided to pretend that they've all just gone away silently.

It's noteworthy, too, that the letter is signed by Mitch Glazier for the RIAA. Glazier, of course, is infamous for his supposed role in sneaking a clause into an unrelated bill -- literally in the middle of the night -- while he was a Congressional staffer, which would have removed an important right of artists to reclaim their copyrights from record labels. Months later, he was hired by the RIAA for a salary around $500k per year -- a job which he retains today. For Mitch Glazier, of all people, to write a letter to a Congressional Representative, pretending to represent the best interests of artists, is pretty laughable.

Either way, almost nothing in the letter is accurate or honest, and none of it answers the key questions being raised by Rep. Lofgren. It most certainly does not explain why ICE is involved in what should be a civil matter. It does not explain why there is no adversarial hearing, despite it being entirely appropriate (as the mistaken seizures have shown). It does not explain why the RIAA stated that these files were infringing when the evidence shows that they were not (and with at least one file, the RIAA had absolutely no right to speak for it).

All in all, the entire letter seeks to avoid the important issues and focus on claims that haven't actually been made. I fully expect Rep. Lofgren will give it all of the attention that such a letter deserves.

Filed Under: defamation, domains, due process, first amendment, ice, mitch glazier, seizures, zoe lofgren
Companies: riaa

Rep. Lofgren Tells Seized Sites They Should Sue The Gov't For Defamation

from the good-for-her dept

On Friday, we posted about Rep. Zoe Lofgren challenging IP Czar Victoria Espinel on the legality of Homeland Security seizing domains without any real due process (where she did a wonderful job shooting down Espinel's empty claim that a magistrate judge's rubber stamping in the absence of adversarial hearing represents any kind of "due process"). About an hour after I posted that, I actually had a chance to chat with Lofgren for a few minutes at the High Tech Law Institute's Symposium about Section 230. Lofgren was happy to hear that lots of folks appreciated her words, and expressed dismay that others in Congress really don't understand (or care) about the issue.

When it became her turn to talk on stage, she doubled down on her comments earlier in the week, and explicitly said that she thinks that the innocent sites taken down in the mooo.com seizure should sue the government for defamation. After all, she points out, the government falsely plastered 84,000 websites with claims that they were associated with child pornography -- and did so with "seals of approval" from Homeland Security and the US government. It will be worth seeing if anyone follows through on this, but it's nice to see another elected official horrified by Homeland Security and the Justice Department running wild with these domain seizures.

I have no idea if any of the sites in question actually will do this, but it might finally help get some attention to what the government is doing in seizing domains without any actual due process.

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

Rep. Lofgren Challenges IP Czar On Legality Of Domain Seizures

from the example-to-the-rest-of-the-world dept

A friend of the site sent over a great video of Rep. Zoe Lofgren quizzing IP Czar Victoria Espinel about the recent domain name seizures. It's clear that Lofgren has been well-briefed on the topic (which makes her one of very few elected officials). Lofgren has always been really good on copyright issues, so this isn't a huge surprise, though I wish she were more vocal on some of these issues. What's really stunning is Espinel's deer-in-headlights reaction to the multiple questions... and the fact that she didn't really address the key questions: She starts out her response with a total non sequitur about how copyright infringement is an important issue and part of her mandate. That may be true, but what Lofgren had specifically asked her was why ICE and Homeland Security are spending taxpayer dollars on a few random blogs, rather than actual criminals.

Where it gets good is when Espinel tries to claim that there was due process in the domain seizures, where Lofgren jumps back in and points out that Espinel is wrong, and that there is no due process here. Espinel pulls out the same claim we keep hearing: that a magistrate judge approved the seizures based on "probable cause," but Lofgren responds by pointing out that judges in such circumstances approve almost anything -- and highlights ICE's similar massive screwup in taking down 84,000 innocent sites -- which also happened with a magistrate judge's rubber stamped approval. Lofgren knows that that's not due process by any stretch of the imagination, and ICE and Espinel really should give up on this line of argument. What they should do is actually provide real due process. Rather than seizing domains, file a lawsuit.

Lofgren's statement in response to Espinel's "due process" claim is so good that we'll repeat it here:

With all due respect, judges sign a lot of things... For example, the FreeDNS takedown -- it wasn't a copyright enforcement, but "supposedly" a child pornography enforcement -- ICE took down 84,000 websites of small business people that have nothing to do with child pornography at all. And put up a little banner saying "this was taken down for child pornography." Really smearing them. If I were them, I'd sue the Department. These were just small businesses. They had nothing to do with anything, and yet a judge signed that. So, if that's the protection, it's no protection. I want to know, what is the Department doing to think about the affirmative defenses, to think about -- yes, there's piracy, and all of us are united that we gotta do something about piracy -- but there's also a First Amendment that you should be considering when you go and destroy a small business. Are you thinking about that?

Espinel's response is that they are thinking about this -- but it's not shown in their actions at all. Once again, there's a very simple way to handle this: have real due process that involves an actual adversarial hearing where before you shut down a website with tons of perfectly legal expression, someone points out to the clueless newbies in Homeland Security that they're not breaking the law. Why is that so difficult?

Espinel goes on to talk about how important due process and the First Amendment are to Americans -- and how what we do serves as an example to other countries. That leaves us with a pretty big question: if that's the case, why did she and ICE ignore both due process and the First Amendment with these domain seizures?

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

Dutch Anti-Piracy Group May Face Legal Charges For Stealing Servers

from the if-you-haven't-paid-for-it,-it's-stealing dept

We've noted in the past how the very aggressive Dutch anti-piracy group BREIN seems to have a problem with stealing computers. The group, which is a private, industry-backed group, seems to fancy itself as some sort of law enforcement adjunct, despite the fact it has no actual legal authority. This has created problems in the past, when the courts have questioned why the police seemed to rely solely on BREIN's questionably collected evidence, rather than doing their own investigation. And some lawsuits have even been dismissed for relying too much on BREIN's highly questionable evidence.

So, by now, you would think that BREIN would be a bit more careful these days not to pretend it has more legal powers than it does. However, the group only seems to go further and further. Last week, it came out that BREIN was able to "seize" a group of servers from a small South African American ISP without any legal basis at all. It just convinced the data center, WorldStream, to simply hand them over. The ISP, Alejandra Transporte SA, who has nothing to do with the warez topsite that BREIN insisted were using those servers, was not at all happy and went to court to complain about the fact that a bunch of its servers had been stolen, causing massive damages to its business. The court granted the request to get the servers back from BREIN, but is quite worried that BREIN went through the private contents on some of the servers, completely in violation of privacy laws.

It seems this entire lack of any sort of due process and private industry groups stealing servers and domains with little basis is a growing trend. It sounds like Alejandra Transporte is considering taking further legal action against both BREIN and WorldStream. I'm curious if the usual defenders of seizures think that this particular seizure was warranted?

Filed Under: netherlands, seizures, servers
Companies: brein

Homeland Security Won't Even Admit Whether Or Not It Seized Mooo.com, Taking Down 84,000 Innocent Sites

from the transparency-in-government dept

Yesterday, I wrote about how there were many reports, starting over the weekend, claiming that Homeland Security's inept Immigration and Customs Enforcement (ICE) group had once again screwed up the process of seizing domains. However, this time, the mistake appeared to be on a much larger scale. While some other sites have simply assumed that Homeland Security seized the entire mooo.com domain, thereby publicly accusing 84,000 sites (nearly all of which were perfectly legitimate) of trafficking in child porn, we were at least willing to give Homeland Security the benefit of the doubt and question whether it was really involved.

Given that no one seemed to confirm that Homeland Security was involved, I figured I might as well ask. I sent off a quick email to a press contact at Homeland Security, asking a simple question: did Homeland Security seize -- and then unseize -- the mooo.com domain? It seemed like a simple yes or no question, and given that Homeland Security is a part of the Obama administration, which has promised the utmost transparency, I figured the least it could do was provide that simple answer. Instead, the response I got was:

"I need to refer you to DOJ for a response to your question."

This, of course, is not true. The actions were taken by Homeland Security's ICE group. It was Homeland Security that put out the bragging press release about seizing more domains and putting up their "this site trafficked in child porn" graphics. But it can't even answer a simple yes or no question about a specific domain? That's not transparency. It also seems to suggest quite strongly that DHS and ICE did, in fact, screw up royally here.

I responded to the press contact, and pointed out that there is simply no reason that Homeland Security cannot answer this question, and repeated the question, but I have not heard back. I also sent an email to the Justice Department, and have also received no response.

Lots of folks are pointing out the incredibly serious First Amendment concerns brought out by such a seizure. Of course, we've pointed out such concerns with all of the previous domains seized, and people said they were overblown concerns. I'm somewhat stunned that we still had people defending such seizures without any due process, when 84,000 legitimate sites might have taken down, as a result.

And, once again, if there were actual due process, involving an actual adversarial hearing, moves like this would be avoided. On top of that, if Homeland Security wanted to actually go after child pornographers by tracking them down and arresting them, rather than just seizing domains, mistakes like this would be avoided. Of course, that would involve doing real work. And that's something that Homeland Security apparently isn't interested in, from the special agents who have failed massively in their investigations on these various takedowns all the way to the press spokespeople who can't even be straight with the American public when they make a massive First Amendment-violating mistake.

Filed Under: domain names, free speech, homeland security, ice, mooo.com, prior restraint, seizures, transparency

Once Again, Why Homeland Security's Domain Name Seizures Are Almost Certainly Not Legal

from the once-more,-with-feeling dept

Earlier this month, in discussing some of the Homeland Security/ICE domain seizures, Karl put together an excellent comment, going through the legal analysis as to why the domain seizures were almost certainly not legal. Karl is not a lawyer, so I sent the comment to a series of lawyers I know who are very much on top of First Amendment issues, and they came back saying that his post was accurate, so I asked him to turn it into a full post, and here it is. With COICA being brought back, the timing is particularly appropriate.

These seizures are the very definition of prior restraint.

The activities that these sites are doing has never been considered criminal infringement. Remember that "evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright." (17 U.S.C. 506(a)(2)) The state has not met their burden of showing that criminal activity occurred at all.

Moreover, it's pretty hard to claim "willful infringement" when a site has been declared completely legal under its own country's laws -- as is the case with Rojadirecta. If it's infringing, it's at most "innocent infringement," which is in no way a criminal act.

Furthermore, none of these sites are "primary" infringers. To be criminal, they must be considered an accomplice, and that requires much, much more proof than "contributory" or "vicarious" infringement does in tort cases. You must share the primary's actus reus and mens rea -- in layman's terms, you had to actively, intentionally, and directly participate, and moreover you had to know the act was criminal. It's amazingly obvious that this doesn't apply to many of these websites.

Under 17 U.S.C. 512's "safe harbors" provisions, if the sites followed the rules laid out therein, they are not liable for infringement at all, and the only relief available is laid out in 512(j). Nothing in 17 U.S.C. 506 takes those safe harbors away. Even if you wrongly believe it did, obeying the law would (once again) make you an "innocent infringer" at most, thus ineligible for criminal infringement under 506. Yet there was not even an attempt to show that the sites did not follow those rules. And apparently many did.

These seizures were also done ex parte, meaning that the defendants were not given prior notice, and were not given a chance to contest the seizures in a pre-seizure hearing. Nor, for that matter, were they given that chance after the seizures occured.

Fort Wayne Books v. Indiana makes it very clear that an ex parte seizure of potentially protected speech, with the intent to take material out of circulation, is prior restraint:

While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, books or films may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing. The risk of prior restraint, which is the underlying basis for the special Fourth Amendment protection accorded searches for and seizures of First Amendment materials, renders invalid the pretrial seizure here. Even assuming that petitioner's bookstore and its contents are forfeitable when it is proved that they were used in, or derived from, a pattern of violations of the state obscenity laws, the seizure was unconstitutional. Probable cause to believe that there are valid grounds for seizure is insufficient to interrupt the sale of presumptively protected books and films.

Note that even taking the offending material itself out of circulation is prior restraint. These seizures went beyond that, and attempted to take entire websites out of circulation, non-infringing speech and all.

Some rebut with Heller v. New York, but nothing in Heller contradicts Fort Wayne:

A copy of the film was temporarily detained in order to preserve it as evidence. There has been no showing that the seizure of a copy of the film precluded its continued exhibition. Nor, in this case, did temporary restraint in itself "become a form of censorship," even making the doubtful assumption that no other copies of the film existed. [Emphasis in original.]

In other words, Heller only applies when you seize a copy of the work, you do it to preserve it as evidence, and it does not prevent public access to the work itself.

Moreover, Heller quotes United States v. Thirty-seven Photographs, which lays out three requirements for ex parte seizures:

(1) there must be assurance, 'by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film'; (2) '[a]ny restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution'; and (3) 'the procedure must also assure a prompt final judicial decision' to minimize the impact of possibly erroneous administrative action. [Emphasis mine.]

These seizures fail every single one of those requirements. Those requirements were put in place "so that administrative delay does not in itself become a form of censorship." This is exactly what is happening here. Forfeiture proceedings for the first round of seizures were only initiated six months after the seizures occurred. The majority of sites still have not had a chance to contest them, and some have only recently been contacted by the government, months after the domains were seized.

Others may rebut with Arcara v. Cloud Books, in which an adult bookstore was closed down because of prostitution occuring on its premises. The usual claim is that "the First Amendment is no shield against criminal activity." But Arcara was only constitutional because "the sexual activity carried on in this case manifests absolutely no element of protected expression." Furthermore, "We have also applied First Amendment scrutiny to some statutes which, although directed at activity with no expressive component, impose a disproportionate burden upon those engaged in protected First Amendment activities."

Copyright infringement does, in fact, have "an element of protected expression" -- that is, a First Amendment defense can be raised (it need not be raised successfully). For that reason alone, Arcara does not apply. But even if the activity was not itself protected, the mere fact that it imposes a "disproportionate burden" upon free expression, disqualifies it from Arcara exemptions. Arcara absolutely, positively does not apply to these seizures.

In case you're wondering -- no, obscenity is not any more "presumptively protected" than copyright infringement is. (Hint: child pornography is a subset of "obscenity.") The same seizure rules (18 U.S.C. 46) apply to both; First Amendment challenges can be raised to both; obscenity, unlike infringement, is always a criminal offense; and the punishment for obscenity is about the same as for criminal infringement. (It's all in 18 U.S.C. 71.)

It's also a dodge to claim that domain names are not "presumptively protected speech." First of all, that's not true. Name.Space v. Network Solutions ruled that general top-level domains (just the .com, .net, etc parts) are not protected, solely because they cannot possibly be expressive. When the domain name can possibly be expressive -- such as when it includes the full creative URL -- it is presumptively protected speech, and First Amendment concerns apply. (See: every single "sucks site" case, and the one about Glenn Beck raping and murdering a young girl in 1990.)

But it's even more of a dodge because the domain names are not even allegedly infringing. They were seized solely to prevent the public from accessing the websites themselves. So the TLDs' status as "protected" is completely immaterial; it only matters whether the websites themselves are possibly protected expression.

And, of course, they are. The majority of the speech on some sites (forums, blog posts, comments, etc) is absolutely, 100% protected speech.

Now, about those seizure laws. 17 U.S.C. 506(b) references 18 U.S.C. 2323, which allows the seizing of any "article, the making or trafficking of which" is criminal infringement. Compare this with the ennumerated articles that can be impounded from 17 U.S.C. 503: "all copies or phonorecords," "all plates, molds, matrices, masters, tapes, film negatives, or other articles," and "records documenting the manufacture, sale, or receipt." These laws were clearly to be used for counterfeit goods, not file sharing.

According to 18 U.S.C. 2323(a)(2), the actual procedures for criminal seizure are in 18 U.S.C. 46. There are three sections dealing with civil forfeiture, none of which seem particularly appropriate. It seems that judicial forfeiture is covered exclusively in 18 U.S.C. 985. 985(d) states:ates:

Real property may be seized prior to the entry of an order of forfeiture if--
(A) the Government notifies the court that it intends to seize the property before trial; and
(B) the court--
(i) issues a notice of application for warrant, causes the notice to be served on the property owner and posted on the property, and conducts a hearing in which the property owner has a meaningful opportunity to be heard; or
(ii) makes an ex parte determination that there is probable cause for the forfeiture and that there are exigent circumstances that permit the Government to seize the property without prior notice and an opportunity for the property owner to be heard.
(2) For purposes of paragraph (1)(B)(ii), to establish exigent circumstances, the Government shall show that less restrictive measures such as a lis pendens, restraining order, or bond would not suffice to protect the Government's interests in preventing the sale, destruction, or continued unlawful use of the real property. [Emphasis mine.]

In other words, even with counterfeit goods, you're supposed to allow an adversarial hearing before seizing anything. An ex parte seizure order is the "nuclear option," to be used only when other methods are insufficient. The affidavits claim that these were indeed "exigent circumstances," but that claim is completely laughable on its face -- especially since the sites were operational for years at the same domain name, without risk of "destruction" or "sale," and the seizures did not preserve (or even help gather) any evidence whatsoever. And no, "continued unlawful use" is not an "exigent circumstance" when that "use" involves potentially protected expression, or, for that matter, when the use is not necessarily unlawful in the first place.

...Now, I'm not a lawyer, and I'm only repeating what I've been able to dig up. You can possibly disagree with some of the above. But in order for these seizures to be legal, you have to disagree with all of it. I'm sure some here will try (and many more will just call me a "freetard" or "pro-piracy" or "LOL!" at me). But no matter how you slice it, the legality of these seizures is not obvious. It's not even likely.

The more I read the law, the more convinced I become that the seizures were a repulsive abuse of power. ICE did this deliberately to route around safe harbors and the First Amendment. They had no intent of filing criminal charges and were hoping the domain owners would be scared into silence. It is prior restraint, and it is censorship, plain and simple.

Filed Under: censorship, homeland security, ice, legality, seizures

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

from the cluelessness-knows-no-bounds dept

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

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

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

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

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

Filed Under: domain names, porn, seizures

Homeland Security Seizes Another 18 Domain Names, With No Adversarial Hearings Or Due Process

from the can't-stop-now dept

As a bunch of the proprietors of domain names seized in earlier questionable domain seizures are preparing to fight back against the seizures, Homeland Security can't resist seizing more domain names. This time, it looks like the seizures were more focused on sites selling counterfeit physical goods, and the seizures were purposely timed to Valentine's Day. Going after sites that sell counterfeit goods makes a lot more sense than some of the other sites that were seized in the past, but there still are serious questions about the legality of such a seizure prior to any adversarial hearing, and with no attempt to even communicate with the site operators. I don't know if this is the case or not, but how does ICE know that these sites did not believe they were selling legitimate products? What's wrong with going through an adversarial hearing in which the site's operators are allowed to defend themselves? If they're really breaking the law, let that be determined at a trial. At the very least, considering the widespread questions about the legality of these seizures, wouldn't it make sense for Homeland Security and ICE to wait until the legality of such seizures is reviewed by a court?

Filed Under: domains, due process, homeland security, ice, seizures

Will Homeland Security Domain Seizures Lead To Exodus From US Controlled Domains?

from the driving-business-abroad dept

With Homeland Security's Immigration and Customs Enforcement (ICE) group now seizing domain names of perfectly legitimate foreign companies, one of the "defenses" of this action is that what those sites do may violate US laws (the lack of an actual court deciding this is conveniently overlooked, but we'll let that slide for now) and thus since the domains are managed by US-based registrars, it's technically property in the US, and thus open to seizure. That, of course, is a case of focusing on the technicality of the situation, rather than the reality of the situation. With Rojadirecta, it's pretty clear that the site was used almost entirely by people in Spain, not in the US. That the .org domain is managed by a US company seems like a weak dodge by US officials at the urging of industry.

But, of course, there are serious questions about the wider impact of this decision. Back in October, we highlighted how Libya had begun seizing .ly domains, because they felt that the content on those domains violated Sharia Law.

When the US is following in the footsteps of Libya for foreign censorship, there's a serious problem.

Of course, after the seizure of the .ly domains, many people started to move away from those domains (including presidential hopeful Mitt Romney, who dumped his Mitt.ly domain). It will be interesting to see if more companies (especially foreign ones) start moving away from .com and .org for just this reason. When the US government suddenly decides that it can simply take your domain name with no warning, no due process, no adversarial hearing and no regards to whether or not the site is actually legal in the country it's targeting, that seems like a pretty clear warning sign that it's time to find a safer domain home. If I were a US domain register or registrar, I'd be pretty pissed off at Homeland Security for promoting the fact that the US government has no problem censoring websites it doesn't like. It's only going to serve to drive people away, and perhaps open up a huge opportunity for a new TLD to become a standard from a country that really believes in due process and free speech.

Filed Under: censorship, domains, homeland security, ice, seizures

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

from the international-incident dept

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

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

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

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

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

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

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

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

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

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