If Newly Seized Domains Were Purely Dedicated To Infringement, Why Was Kanye West Using One?

from the questions,-questions dept

The details of Homeland Security's domain name seizures keeps looking more and more questionable. Early on, people were scratching their heads over the seizure of torrent-finder.com, which was a pure search engine, but the deeper that people are looking into the domains involving copyright claims (many of the seized domains were apparently about trademark/counterfeiting rather than copyright), the more questionable the whole situation looks. Torrent-finder was just the start. Two more of the seized sites, RapGodfathers and OnSmash are popular hip hop blogs. In fact, both sites note that labels and artists regularly send them their own music, and both sites note that they comply with the DMCA in taking down files based on takedown notices. Even more damning, top artists like Kanye West clearly appreciate sites like this. Just a few weeks ago, Kanye West linked to OnSmash via his Twitter feed.

It really looks like Homeland Security/ICE may have seriously screwed up here. Whether or not seizing domains in general like this is even legal is an open legal question -- and blatantly seizing domains with tons of legit content that the industry and artists regularly used themselves seems like a test case the government doesn't want just waiting to happen. Hopefully the folks behind both blogs have already gotten in touch with various civil liberties/free speech lawyers who can help make them into perfect test cases to show that the government can't just seize web sites without due process.

Filed Under: blogs, copyright, domain names, free speech, seizures

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Five Questions For Homeland Security Concerning Its Online Censorship Campaign

from the please-answer... dept

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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