ICE Denies FOIA Request From Lawyer Because It Might Help Her Better Defend Her Client

from the government-now-just-making-up-FOIA-exemptions dept

The government doesn't care much for a level judicial playing field. That whole checks and balances thing? It's just getting in the way of speedy prosecutions. Federal and state prosecutors have engaged in routine Brady violations -- the withholding of exculpatory evidence from defendants.

Immigration and Customs Enforcement (ICE) is taking this to a whole new level. It's refusing to turn over FOIAed records to a defendant's lawyer expressly because they could be used to mount a defense against the government's charges. Of course, ICE doesn't say so in those exact words, but the words it does use leave that distinct impression.

The ACLU of Colorado notes that defense lawyers in immigration cases are even more hamstrung than most when going up against the government.

Jennifer Smith, an immigration attorney, filed a FOIA request to U.S. Citizen and Immigration Services (USCIS) for records related to the immigration status of one of her clients. Immigration attorneys have limited discovery options and can generally gain access to a client’s immigration file only by filing a FOIA request.

From the FOIA lawsuit [PDF]:

In order for Ms. Smith to determine what steps, if any, needed to be taken on behalf of Ms. Sanchez, on or around May 22, 2013, Ms. Smith submitted a FOIA request to USCIS.

Specifically, Ms. Smith’s FOIA request sought Ms. Sanchez’s “Complete Alien File (A-File)” and “any and all records of entry into the United States or departures from the United States after January 1, 2005” and “any and all records of I-94s pertaining to this person after January 1, 2005.” This information was necessary for Ms. Smith to properly analyze how best to advocate on behalf of Ms. Sanchez.

ICE doesn't want Smith's client to be advocated for with any sort of skill or competence or even with documents the agency has no right to withhold. It withheld the records in full. ICE stated no applicable FOIA exemption when doing so. Instead, it simply claimed it's standard procedure for it to prevent defendants in immigration proceedings from being defended properly. And it delivered this FOIA GFY after a delay of more than two years.

When USCIS produced documents to Ms. Smith, the 18 pages that had been referred to ICE were blank except for the words “Referred to Immigration and Customs Enforcement” printed at the top. USCIS provided no basis for withholding the 18 pages of documents under any of the FOIA exceptions enumerated above, or for any reason at all. Instead, USCIS apparently takes the position that it satisfied its FOIA obligations by “referring” the documents and FOIA request to ICE for further handling.

[...]

On September 3, 2015 (more than two years after the FOIA request was submitted to USCIS), ICE responded to Ms. Smith as follows:

ICE’s records indicate that as of September 3, 2015, the subject of your request is a fugitive under the Immigration and Nationality Act of the United States. It is ICE’s practice to deny fugitive alien FOIA requesters access to the FOIA process when the records requested could assist the alien in continuing to evade immigration enforcement efforts.

ICE doesn't want the defendant to "evade" justice. That's why it's decided it won't allow the defendant's lawyer to view any documents related to her. This is ICE's "practice:" to withhold documents possibly vital to a suspect's defense under the theory -- but not under any actual FOIA exemption -- that the information sought might somehow be used to defend against enforcement efforts. To ICE, files helpful to the defense are little more than getaway cars for fugitive aliens.

By refusing to hand over these documents, ICE hopes to prevent its prosecutions from being slowed by the adversarial process. Smith's lawsuit points out that the agency's "practice" erects obstacles that become almost insurmountable when combined with language barriers and the plethora of federal agencies involved in securing our nation's borders.

ICE’s “practice” of denying access to the FOIA process imposes significant burdens on lawyers who represent non-citizens in connection with immigration issues. In many cases, lawyers cannot effectively represent their non-citizen clients—or even determine whether there is a way to help them—without access to information or records the client may be unable to provide.

Many non-citizens lack familiarity with the immigration system and U.S. law enforcement in general, and do not know or understand the difference between various agencies with which they might interact. The Department of Homeland Security, for example, has several branches that a non-citizen may encounter, but with different roles within the system. These agencies include, among others, Customs and Border Patrol, ICE, and USCIS. Often, noncitizens (and citizen non-lawyers, for that matter) may simply know they are talking to an officer wearing a badge, without understanding what jurisdiction and/or authority that person represents. Thus, anon-citizen’s understanding of a contact with government agents is often insufficient to inform an immigration attorney as to what occurred and the outcome of any agency investigation.

Furthermore, the client may not remember events that occurred long ago, or may not have received mailings or notices from USCIS and/or ICE. In other cases, the non-citizen might be unaware of proceedings that occurred where the non-citizen was not present, or if present, where the non-citizen failed to understand what happened, or the significance of what happened. Or there may be procedural irregularities that a lawyer could discern from the government’s documents that her client, as a layperson, might not recognize. Or, in some cases it is possible that a deportation order issued in absentia that the non-citizen knows nothing about. Or a non-citizen may not know whether a claim of asylum was properly acted on, or was even presented to the proper agency.

As a result, immigrants seeking legal advice may be unable to explain to their attorney which agency they met with, and what type of interaction transpired, and what the legal issues may be. In these circumstances the only way the non-citizen’s lawyer may obtain this kind of information is through a FOIA request. Without access to the FOIA process, a lawyer may have literally no place to start in assisting her client.

"No place to start" is exactly where ICE likes opposing lawyers. Smith and the ACLU are hoping to change this. They're seeking not only a judgment that will force ICE to turn over the requested files, but also prevent it from using its wholly-madeup FOIA "practice" to deny records in the future.

Filed Under: foia, ice, transparency

Kickass Torrents Gets The Megaupload Treatment: Site Seized, Owner Arrested And Charged With Criminal Infringement

from the because-of-course dept

So just as the US government itself is accused of being engaged in massive copyright infringement itself, the Justice Department proudly announces that it has charged the owner of Kickass Torrents with criminal copyright infringement claims. The site has also been seized and the owner, Artem Vaulin, has been arrested in Poland. As with the original Kim Dotcom/Megaupload indictment, the full criminal complaint against Vaulin is worth reading.

As with the case against Dotcom/Megaupload, the DOJ seems to ignore the fact that there is no such thing as secondary liability in criminal infringement. That's a big concern. Even though Kickass Torrents does not host the actual infringing files at all, the complaint argues that Vaulin is still legally responsible for others doing so. But that's not actually how criminal copyright infringement works. The complaint barely even shows how Vaulin could be liable for the infringement conducted via Kickass Torrents.

But, of course, that doesn't matter because the guy at Homeland Security Investigations (formerly: ICE: Immigrations & Customs Enforcement) just spoke to the MPAA and the MPAA said that Kickass Torrents had no permission to link to their content. Yes, link.

As part of the investigation, I have communicated with representatives of the Motion Picture Association of America (MPAA) regarding this investigation. The representatives provided me with information the MPAA had developed about KAT, among other websites. The representatives stated that the MPAA closely monitors KAT and that a significant portion of the movies available on KAT are protected by copyright. The representatives also specified that the MPAA has not granted permission to KAT to index, link, frame, transmit, retransmit, provide access to, or otherwise aid or assist those who distribute and reproduce infringing copies of copyrighted motion picture or television content of MPAA members.

Here's the thing: most of those things listed above are not rights granted by the copyright act. The copyright act is pretty specifically limited to a few rights, including reproduction and distribution. But, again, note the games played in the complaint: "index, link, frame, transmit, retransmit, provide access to" don't directly infringe on the stated copyright exclusive rights (yes, there are some cases where some of the above may infringe on some of the exclusive rights, but it's not particularly cut and dry). So instead, the government tosses in this "otherwise aid or assist those who distribute and reproduce infringing copies of copyrighted motion picture or television content."

So, you see, once again, the government is creating a form of secondary liability for copyright infringement that does not exist in the law. That's a problem. Because that's not how criminal copyright law works. At all.

Furthermore, the complaint goes on about how KAT, as it calls Kickass Torrents, rejected DMCA takedown notices for a variety of reasons, but leaves out the fact that KAT is not an American company and is not under the jurisdiction of US laws. So I'm not entirely clear why US copyright laws apply here. The best they can do is note that they found a few servers that were apparently in Chicago.

The complaint spends lots of time on the fact that KAT makes a fair bit of money from advertising revenue. But, again, I'm not entirely clear how that's relevant to the claim of criminal copyright infringement. The implicit argument is clearly "people go to KAT to get infringing content, the site makes advertising from all that traffic, thus the revenue is ill-gotten gains." But... again that relies on the idea that KAT itself is engaged in criminal behavior. Creating a popular tool for finding content -- some of which may be infringing -- and then making money from advertising, are separate things. It seems wrong to make this weird if->then conditional assumption that just because the site made lots of money it was infringing.

No one is suggesting that Kickass Torrents was not regularly used by individuals to infringe on copyrights. It was. A lot. And you can argue how horrible that is and how it was killing Hollywood and all that -- but the specifics here do matter. The same arguments were made about the VCR for years. After all, the MPAA insisted that it was used exclusively to infringe on content for years until they finally realized that it was a good idea to release content for the home video market. And, again, the US government isn't allowed to make up criminal liability concepts that aren't actually in the law. They, and their supporters, of course will now argue that it's not about secondary liability, but about "aiding and abetting." But that argument doesn't fly either. The standards for aiding and abetting are much more involved -- and would require that the actual infringement be criminal. But that won't fly, because the individuals downloading via Kickass Torrents weren't violating criminal copyright law themselves.

In other words, the DOJ is trying to argue that helping a bunch of people engaged in civil copyright infringement magically turns into criminal aiding and abetting. But that's not how the law works.

Meanwhile, the DOJ's press release on this is filled with all the usual insane bluster:

"Copyright infringement exacts a large toll, a very human one, on the artists and businesses whose livelihood hinges on their creative inventions," said U.S. Attorney Fardon. "Vaulin allegedly used the Internet to cause enormous harm to those artists. Our Cybercrimes unit at the U.S. Attorney’s Office in Chicago will continue to work with our law enforcement partners around the globe to identify, investigate and prosecute those who attempt to illegally profit from the innovation of others."

Funny. Is he also going to charge the US Navy for its massive copyright infringement? Or is that not the kind of copyright infringement harm Fardon goes after?

"Vaulin is charged with running today’s most visited illegal file-sharing website, responsible for unlawfully distributing well over $1 billion of copyrighted materials," said Assistant Attorney General Caldwell. "In an effort to evade law enforcement, Vaulin allegedly relied on servers located in countries around the world and moved his domains due to repeated seizures and civil lawsuits. His arrest in Poland, however, demonstrates again that cybercriminals can run, but they cannot hide from justice."

The $1 billion of copyrighted materials is a nice touch, but again represents merely the estimated cover price, not any actual losses to the industry. Not that the DOJ wants to admit that. But the next guy is even worse, no longer just claiming that over $1 billion was distributed, but directly stating that Vaulin stole $1 billion.

"Artem Vaulin was allegedly running a worldwide digital piracy website that stole more than $1 billion in profits from the U.S. entertainment industry," said Executive Associate Director Edge. "Protecting legitimate commerce is one of HSI’s highest priorities. With the cooperation of our law enforcement partners, we will continue to aggressively bring to justice those who enrich themselves by stealing the creative work of U.S. artists."

Aren't law enforcement people supposed to actually know the law? There was no stealing. There may have been copyright infringement using the tool that Vaulin built, but that's not stealing.

"Investigating cyber-enabled schemes is a top priority for CI," said Chief Weber. "Websites such as the one seized today brazenly facilitate all kinds of illegal commerce. Criminal Investigation is committed to thoroughly investigating financial crimes, regardless of the medium. We will continue to work with our law enforcement partners to unravel this and other complex financial transactions and money laundering schemes where individuals attempt to conceal the true source of their income and use the Internet to mask their true identity."

Illegal commerce? It was basically a search engine for free content. What illegal commerce happened there?

Yes, yes, lots of infringement happened via the site. No one denies that. But having law enforcement folks stand up and make clueless statements like this suggest they don't even understand what Kickass Torrents did, and they just want to puff themselves up and look good for Hollywood.

Meanwhile: does anyone really believe that this move will cause anyone who used KAT to suddenly go back to purchasing movies?

Filed Under: aiding and abetting, artem vaulin, copyright, criminal copyright infringement, dhs, doj, hsi, ice, secondary liability
Companies: kickass torrents, mpaa

DHS/ICE Knew Its World Series 'Panty Raid' Was A Bad Idea; Pressured To Do So Anyway

from the to-secure-the-nation,-starting-with-the-trademarks dept

The Kansas City Royals' long-delayed return to competitive baseballing coincided with one of the most ridiculous raids ever conducted by the Department of Homeland Security. Birdies, a Kansas City lingerie shop, was "visited" by DHS agents -- working in conjunction with ICE -- who seized a number of panties emblazoned with a handcrafted take on the Royals' logo, along with the phrase "Take the Crown."

The agents performing the raid didn't seem all too enthused about their participation in this panty raid, according to the shop's owner, Peregrine Honig.

She says you could tell “they [DHS agents] felt like they were kicking a puppy.”

Honig also pointed out that many local law enforcement officers had purchased lingerie, including the supposedly-trademark infringing panties, without expressing concerns about IP violations or counterfeited goods.

The printing shop that made the panties for Birdies was also visited by DHS agents, who threatened the owner with six years in prison for "breaking copyright law" unless he consented to a warrantless search.

All of this culminated in plenty of unfavorable press coverage highlighting Homeland Security's panty raid and how much "safer" we all were thanks to its intercession on behalf of the Kansas City Royals and Major League Baseball.

Aaron Gordon of Vice Sports has acquired DHS communications related to the infamous panty raid via a FOIA request. The internal emails contain an awesome mixture of self-congratulation, defensiveness, and the agency's willingness to go above and beyond to please its "eager" partner in IP enforcement.

On October 16, five days before the raid, an anonymous ICE officer from the Intellectual Property Rights Coordination Center (IPRC)—in the documents released, names of officers were redacted; an appeal has been filed to release the names of the officers involved—wrote an email with the subject "Op Team Player - world series update," referring to Operation Team Player, ICE's partnership with U.S. professional sports leagues to intercept counterfeit goods, including tickets and merchandise.

The unnamed officer wrote, "They [the Kansas City office] are trying to get their numbers up and will accept any leads for controlled delivery in Kansas or Missouri, even if they do not meet the criteria because the AUSA Prosecutor is eager."

For the want of increased "numbers," the DHS lowered its standards to raid a lingerie shop. That's basically all there is to it. Without the prompting of an "eager" AUSA, this may never have happened.

Within hours of the raid, the story was already spreading across the internet. A blanket statement was composed for handling inquiries from the press: the usual "Go Team IP Enforcement" jingoism that accompanies ICE's sporting event-related raids performed in close partnership with the MLB, NBA, NFL etc. But someone in the email chain knew the usual stuff wasn't going to be nearly as effective in this case.

The headlines at the bottom of the email pretty much say it all. We're going to be all over the news tomorrow for the wrong reasons. We'll obviously try to spin this as an opportunity to discuss IPR, but the panty raid jokes will make it hard.

Apparently, ICE/DHS felt this particular narrative might be beyond its control. So it tried to drag Major League Baseball down with it.

On the same thread, at 9:57 PM, someone wrote, "We need MLB to step forward and throw some support for what we do. Let us get with our MLB contact and we'll be proactive as we can re: media." Someone with the title "Executive Associate Director of Homeland Security Investigations-ICE" replied, "Great idea. Let's move on it."

As Gordon notes, perhaps the hilarious part of the email chain is the agency's severe underestimation of the internet's thirst for stories containing (a) abuse of government power, or (b) women's intimate garments -- especially any combination of (a) and (b) that's capable of composing its own headlines.

[S]omeone else on the same thread exhibited a fundamental misunderstanding of the internet's interest in panty raids by writing, "So far it appears to have just localized press. Hopefully, it won't make it out of the local news bubble."

Well, hope in one hand and hold seized panties in the other, as they say. Still, one agent appeared to believe that the government's panty raid was nothing more than a judicious use of Homeland Security assets and taxpayer dollars.

Excellent work, which speaks for itself!

Sure does. That's why press coverage was unanimously negative. ICE, DHS and an "eager" AUSA joined forces with MLB to generate additional acronyms like "WTF" and "BS." Americans were protected from unauthorized sportsball underwear -- something than can only serve to increase their respect for intellectual property rights... and the sprawling, often-thuggish bureaucracies that enforce them.

Filed Under: counterfeit, dhs, ice, kansas city, panty raid, world series
Companies: major league baseball

Homeland Security Wants To Subpoena Us Over A Clearly Hyperbolic Techdirt Comment

from the guys,-calm-down dept

Earlier this week, one of our writers, Tim Cushing, had a story about yet another abuse of the civil asset forfeiture procedure. You can read that whole story for the details, but the short version is that US Customs & Border Patrol, along with Hancock County (Indiana) Sheriff's Dept. officers, decided to seize $240,000 in cash from a guy named Najeh Muhana. Muhana sought to get that cash back, but after a series of ridiculous communications, his lawyer was told that Customs and Border Patrol in Ohio was keeping the money, and that Muhana had "waived his rights to the currency." This was not true, and certainly appeared to be pretty sketchy. Because of all of this, Muhana filed a lawsuit against US Customs & Border Patrol asking for his money back.

Not surprisingly, this story of what many would argue is just blatant theft by law enforcement (the people who are supposed to be protecting us from theft) upset a number of folks who expressed their frustrations in the comments -- some using colorful language. That kind of language might not necessarily be considered appropriate in polite company, but isn't entirely out of place in internet forums and discussions where rhetorical hyperbole is not uncommon.

So I have to admit that I was rather surprised yesterday afternoon when we received a phone call from an agent with Homeland Security Investigations (the organization formerly known as ICE for Immigration and Customs Enforcement), asking where they could send a subpoena to identify a commenter on our site. Our lawyer, Paul Levy of Public Citizen Litigation Group, requested more information and we were told that DHS is interested in obtaining user information on the following comment by "Digger."

The only "bonus" these criminals are likely to see could be a bullet to their apparently empty skulls.

The person wronged probably knows people who know people in low places who'd take on the challenge pro-bono, after a proper "cooling-off" period.

Now, that's pretty crude and a bit ridiculous. But it's also pretty obviously not even anything remotely like an actual threat. First off, he's not suggesting that he's looking to do this at all. He's suggesting that "the person wronged" -- by which he likely means Mr. Muhana -- would somehow get some friends to do this. This is pretty ridiculous and almost certainly wrong. Second, he's actually responding to another comment, that reasonably bemoans the likelihood that those involved in all of this will receive no punishment at all.

Now, it's entirely possible that there are more details here involving a legitimate investigation, but it's difficult to believe that's the case given the information we have to date. Also, we have not yet received the subpoena, just the phone calls and emails suggesting that it's on its way. Normally, we'd wait for the details before publishing, but given a very similar situation involving commenters on the site Reason last year, which included a highly questionable and almost certainly unconstitutional gag order preventing Reason from speaking about it, we figured it would be worth posting about it before we've received any such thing.

We have told Homeland Security that we're willing to receive the subpoena and review it, but that based on what we know, we have serious First Amendment concerns about the request itself. Multiple Supreme Court cases, including Rankin v. McPherson and Watts v. United States have made it clear that people have a First Amendment right to say that they hope the President gets shot, let alone a law enforcement agent. It may be rude and uncomfortable, but if it is not an indication of a "true threat," then it is protected. And, as such, the idea of disclosing any information about someone who was clearly engaged in rhetorical hyperbole in an internet forum, likely leading to federal agents showing up at his or her door, is quite troubling to us.

Really, the most ridiculous part of this is why this is what's being investigated, rather than why the government was basically able to just walk away with $240,000 from this guy and ignore his attempts to get his money back.

We will keep you informed... as much as we are able to.

Filed Under: asset forfeiture, comments, dhs, free speech, gag orders, homeland security, homeland security investigations, hsi, ice, indiana, najeh muhana, ohio

Law Enforcement Raids Another Tor Exit Node Because It Still Believes An IP Address Is A Person

from the TASE-THAT-ROUTER dept

An IP address is not a person, even less so if said IP address traces back to a Tor exit relay. But that's not going to stop the "authorities" from subjecting people with no knowledge at all of alleged criminal activity from being subjected to raids and searches.

It happened in Austria. Local police seized a bunch of computer equipment from a residence hosting a Tor exit node. ICE -- boldly moving forward with nothing more than an IP address -- seized six hard drives from Nolan King, who was also running a Tor exit relay.

Those more familiar with Tor suggested ICE's "upon information and belief" affidavit statements should probably include at least a little "information" and recommended law enforcement check publicly-available lists of Tor exit nodes before conducting raids based on IP addresses. ICE, however, vowed to keep making this same mistake, no matter what information was brought to its attention.

ICE wasn't involved in the latest raid predicated on nothing more than an IP address -- at least not directly. This search/seizure was performed by Seattle PD conducting a child porn investigation. Sure enough, investigators had traced the activity back to an IP address, which was all the probable cause it needed to show up at privacy activist David Robinson's home at 6 a.m. and demand access to his computers.

"They were there because I run a Tor exit relay," he says. Tor (which stands for The Onion Router) is a system that allows people to surf the Internet anonymously. It's sometimes referred to as the "dark Web," and it relies on Internet connections provided by volunteers like Robinson.

Robinson said the Seattle PD "should have known" he couldn't "see" the traffic passing through his node and that relay was little more than a "post office:" something anyone can use, even criminals, to send and receive information.

Considering he's depicted as a "prominent privacy activist," Robinson "should have known" a few things himself. This is not the correct response to a 6 a.m. visit by misguided police officers.

[W]hen Seattle police showed up at David Robinson's home shortly after 6 a.m. last Wednesday, he figured he had little choice but to let them in and hand over all his computer passwords.

That's no way to handle the police. Of course, they did present Robinson with a bad/worse proposition.

Instead of impounding all of Robinson's computers, which the warrant would have allowed, they offered to search them on the premises as long as he consented to turning over his passwords. He did, and they let him keep his machines after they scanned them.

On-site imaging: now a thing thanks to extremely cheap, portable storage. Still, that's not much comfort to Robinson, who no longer trusts his computers.

Given his early morning wake-up call last week and the fact that he may now have to get rid of his computers because he can't be sure what the police did to them while he was being questioned outside his apartment, Robinson says he may have to reassess whether it's practical for him to [continue running Tor relays].

It would be a lot more practical if law enforcement didn't assume "IP address" = "smoking gun." It also would help if people -- including politicians -- didn't assume just because something's not visible, it must be criminal. As has been pointed out before, Tor Project publishes a list of publicly-available exit relays and anyone can access that list -- even law enforcement. Courts have declared, on multiple occasions, that an IP address is not a person. I guess those logical conclusions have yet to trickle down to law enforcement level.

Filed Under: ice, ip address, nolan king, tor

Homeland Security Admits It Seized A Hip Hop Blog For Five Years Despite No Evidence Of Infringement; RIAA Celebrates

from the fuck-you,-riaa dept

Last month, we were actually the first publication to report that Homeland Security had very quietly "returned" two domains that it had "seized" five years ago based entirely on totally bullshit claims from the RIAA. We focused our story on the search engine torrent-finder, but also mentioned that it appeared that DHS had returned OnSmash.com as well. As we had noted, back when the domain was first seized, OnSmash was a popular hip hop blog that many in the industry purposely sent their music to, because it was great for marketing and publicity. In fact, Kanye West had been known to promote OnSmash himself. That doesn't sound like a site "dedicated to infringement" as Homeland Security's ICE division claimed in the affidavit used to seize the website.

Four years ago, we were wondering whatever happened to OnSmash, as other sites that had gone to court over the seizures had had their domains returned -- and it was admitted that this was because the RIAA (which had told ICE about these websites) failed to provide any actual evidence. It appears the same thing happened with OnSmash, though it just took an extra four years to get the domain back, as OnSmash's operator, Kevin Hofman, chose not to take the riskier path that Dajaz1 took in going to court. But, the NY Times story about the return of OnSmash gets a quote from ICE admitting that they never had enough evidence:

When asked about the return of OnSmash and another site, Torrent-Finder.com, which was seized in the 2010 raid and also returned to its operator this fall, Matthew Bourke, a spokesman for the National Intellectual Property Rights Coordination Center of Immigration and Customs Enforcement, said that after working with the Justice Department, “it was determined there was not enough evidence to seize the websites.”

Think about that for a second. The US government shut down a blog for more than five years and only after giving it back now admits that it never had enough evidence to seize the website.

I'm gong to repeat that:

The US government shut down a blog for more than five years and only after giving it back now admits that it never had enough evidence to seize the website.

Meanwhile, the RIAA, which told the agent in charge of the investigation that these sites were nothing more than dens of infringement, is so obnoxious as to now celebrate them being returned with some bullshit line about how they now "wish to be legitimate operators":

Jonathan Lamy, a spokesman for the recording industry association, said he welcomed the return of the sites, as long as they played by the rules. “If the managers of some of these sites now seek to have the domain name returned because they wish to become legitimate operators, that’s a success,” he said.

What a load of horseshit, Lamy. These sites didn't "now seek to have the domain name returned." They asked for it back almost immediately after they were seized on false pretenses based on false information provided by the RIAA. Perhaps, instead of some bullshit about these sites suddenly wanting to play by the rules, Lamy should walk down the hall to see his colleague Carlos Linares (who is still employed by the RIAA) and ask him what was up when he lied to federal investigators, helping to shut down a popular blog, violating the site's First Amendment rights?

This is from the affidavit used to seize OnSmash:
Now, Hofman is trying to rebuild the blog, having basically lost years of momentum due to the RIAA's lies.

Mr. Hofman, whose day job is managing digital accounts for musicians, has already restarted OnSmash, but he said he was aware of the challenges he would face. The site has lost most of its momentum, and blogs — once at the forefront of online music promotion — have largely been superseded by social media. He noted one advantage: By embedding links from sites like SoundCloud and YouTube, where artists and labels post songs directly, there is no more gray area concerning the source of the music.

“The plan now,” Mr. Hofman said, “is to do my best to pick up the pieces.”

Oh yeah, insult to injury: Homeland Security made him pay $7 to get the domain back.

I'm still amazed that these stories haven't gotten more attention. Again, if the federal government seized and shut down a print magazine people would be up in arms. But they do that for a bunch of online magazines and nobody seems to care? Again, they seized the domain based on false information and kept it for five years knowing that they didn't have enough evidence to have made the seizure in the first place.

And the guy who helped at the RIAA is still employed. Has anything happened to the ICE agent, Andrew Reynolds, who wrote the affidavit? How about the magistrate judge, Margaret Nagle, who apparently had no problem signing off on the seizures of internet blogs based on faulty evidence? Apparently, she recently retired and is now acting as a mediator. You know what might have been helpful? If someone had actually been able to mediate things back in 2010 before the RIAA, Homeland Security and Judge Nagle worked together to shut down an internet news website with no justification.

I've issued some FOIA requests to Homeland Security about both OnSmash and Torrent-Finder, and so far they've said that it would be "too burdensome" to search for any emails mentioning either site. I'm hopeful that more information will be exposed on what a colossal screwup this was.

Filed Under: andrew reynolds, asset seizure, blogs, carlos linares, copyright, dhs, first amendment, free speech, hip hop, homeland security, ice, jonathan lamy, kanye west, kevin hofman, margaret nagle, onsmash, riaa, seizure
Companies: riaa

After Illegally Censoring Websites For Five Years On Bogus Copyright Charges, US Gov't Quietly 'Returns' Two Domains

from the look-at-that dept

One of the craziest stories of outright censorship by the US government isn't getting any attention at all. Five years ago, ICE -- Immigrations and Customs Enforcement -- a part of the Department of Homeland Security, illegally seized a group of domain names, claiming that they were violating copyright law. As we noted soon after this, the affidavit that ICE used to get a court to sign off on the seizures was particularly ridiculous, showing a near total lack of understanding of both the law and how the internet worked.

The owner of one of the domains, Waleed Gad El Kareem, announced quickly that he was going to fight the seizure -- and he did. Of course, you might not have heard much about it because Homeland Security and ICE basically ignored his legal effort to contest the seizure... until just a few days ago when the domain was "returned" (more on that in a bit). You may also recall that ICE defended these seizures by stating that "no one" had challenged any of the seizures. We called bullshit on this, noting that the owners of five of the seized domains had, in fact, challenged the seizures. Four years ago, we wrote about how the government sheepishly returned Dajaz1, a hip hop music blog, that it had seized and censored for over a year. That story was fairly crazy, as it only did so after Dajaz1 filed a claim demanding the return of the site. The Justice Department secretly (without even telling Dajaz1's lawyer) kept delaying the required response to such a demand, until finally giving up and giving back the domain. It was later revealed that the "reason" ICE secretly delayed returning the domain was that it kept asking the RIAA for the evidence that Dajaz1 had violated the law (as an RIAA rep had initially sworn to an ICE agent), but the RIAA never provided anything.

The following summer, the government returned two more domains. In that case, the company that owned the domains rojadirecta.org and rojadirecta.com, Puerto 80, had actually taken a different path than the others. It flat out sued the government. The government then turned around and initiated a separate legal process to permanently "forfeit" the domains, leading to a bizarre series of filings -- and then, magically, the government just gave up and handed the domains back.

As we noted at the time, that still left a couple of other domains, including torrent-finder.com and onsmash.com. This was all the way back in Decmeber of 2011 -- four years ago -- when we noted both were unaccounted for. Over those four years, I've periodically checked in with the lawyers for both sites, and basically kept getting told there was no update at all, and that they had tried to talk ICE into returning the domains, but ICE basically stopped returning their calls. From what I can gather, neither of the operators of those sites wanted to take the route of Dajaz1 or Rojadirecta, which involved actually going to court, as that's an expensive proposition.

But, it appears that last week, five years after the government just seized those domains, they were supposedly turned back over to the owners.

Well, sort of. Having spoken to Waleed about torrent-finder.com, he told me that ICE had promised to renew the domains when payment ran out -- but it did not do so. Waleed actually feared that might be an issue, and had to re-grab the "expired" domain out of exemption, after ICE released its hold on it. I have not yet been able to confirm what happened with OnSmash.com, but we've been told that ICE similarly released its hold on that domain the same day as it released Torrent-finder.

Still, think about this for a second: The US government illegally seized and censored, on no legal basis a series of websites for five whole years. Dajaz1 and OnSmash were blogs -- so it was akin to seizing the printing presses of magazines (clear prior restraint that is unconstitutional). Torrent-finder is a search engine, like Google or Bing, but specialized in torrent files. Yes, many torrent files may link to infringing content, but many do not, and a search engine should never be completely seized, without any real due process, just because it finds content that may break the law.

This is a complete travesty, and the US government completely got away with it too, because the websites it seized were generally held by individuals without much money, or not even in the US (as is the case with Waleed). I've filed a FOIA request with ICE to try to find out more information on this, but considering all of the grandstanding ICE did when it seized these websites, the fact that it's now basically returned every one of the domains who challenged the seizure really says something -- and it's not good for ICE. Hell, check out this ridiculous MSNBC "investigation" that quotes the ICE guy in charge of these efforts, William Ross, saying completely nonsensical things, like: "We're protecting them from other people taking their ideas and selling them." How do you sell someone else's ideas? Also, none of these sites involved selling anything.

Ross is also quoted in the piece saying: "We keep going after them, no matter how many times they come back up." And yet now ICE has admitted that Ross not only totally fucked up in stealing these domains from their legitimate owners, it then illegally held them for five years. You'd think that, at the very least, Ross and the US government owe Waleed and the others an apology. But I wouldn't expect that any time soon.

Filed Under: asset forfeiture, copyright, dhs, domains, ice, seizing domains, waleed gad el kareem, william ross
Companies: onsmash, torrent-finder

ICE Rejects FOIA Request Over Drones Because ICE Has Determined It's Not 'Newsworthy'

from the i-sense-a-conflict dept

Immigrations and Customs Enforcement, ICE, has a bit of a reputation around these parts. When it's not dealing with serious morale problems internally, it's censoring websites on no legal basis, holding questionable panty raids and grabbing people out of movies because the MPAA doesn't like their choice in eyewear. ICE also has a history of issuing really questionable FOIA denials (for what it's worth, ICE still won't respond to that FOIA request, many months later...).

Shawn Musgrave, over at Muckrock, recently sought some ICE documents via a FOIA request, specifically looking at "Operation Safeguard," a two-week program that ICE ran using Predator drones to police the US-Mexico border back in 2003. Musgrave sought ICE documents about Operation Safeguard, but ICE said that Musgrave didn't qualify as a journalist, thus limiting the power of his request (and allowing ICE to ask for more money to complete the request). Musgrave pointed to many of his published stories, but in response was told his request was still being rejected because the information is not about "current events or that would be of current interest to the public." ICE is trying to play games with the definition of "news" in that response. The issue is most certainly "current interest to the public," and for ICE to self-decide otherwise is preposterous. Letting ICE FOIA officials determine what is and what is not newsworthy seems like opening up a huge loophole for ICE to create all sorts of problems on the FOIA front -- something that it seems particularly interested in doing.

ICE also claimed that there was enough info out there already about Operation Safeguard, so no need to release any more: As Musgrave notes, this is incredibly misleading:

Having conducted my own online search ahead of submitting the FOIA request, I know foremost that studies from the Congressional Research Service refer to Operation Safeguard primarily in footnotes. Such CRS reports are conveniently posted on the Federation of American Scientists website.

What’s more, Senator Cantwell pressed for drones along the northern border in 2006 by vaguely citing Operation Safeguard’s findings.

But the Center for International Policy came to the most critical finding of all in surveying domestic drones in April 2013: “Unfortunately, Congress never reviewed the results of Operation Safeguard pilot project.”

Such a bounty is enviable, but is no substitute for the documents themselves. And while ICE may not see much news value in the origins of a program currently under intense scrutiny, someone somewhere just might.

It really does seem like operations like ICE really are just looking for excuses to reject FOIA requests these days...

Filed Under: dhs, drones, exemptions, foia, ice, newsworthy, operation safeguard

Study After Study Shows The DHS Has An Intense Morale Problem That Can Apparently Only Be Solved By Study After Study

from the 'we've-tried-nothing-and-we're-all-out-of-ideas!' dept

Guess which national agency's feelings hurt the most?

The 2014 Best Places To Work in the Federal Government Survey, published by Stier’s group, ranked DHS dead last among large agencies.

[...]

Many DHS employees have said in the annual government “viewpoint” survey of federal employees that their senior leaders are ineffective; that the department discourages innovation, and that promotions and raises are not based on merit. Others have described in interviews how a stifling bureaucracy and relentless congressional criticism makes DHS an exhausting, even infuriating, place to work.

Beyond the problems listed here, there are a great many reasons why it might suck to work for the DHS. To begin with, the agency is actually a Frankensteinian monstrosity consisting of 22 agencies, all with their own ideas on how to run things and nearly all of them with their own sets of problems.

The DHS is in the (relatively) newly-minted business of securing the homeland against all comers -- mostly terrorists of the foreign and domestic varieties. Whether it's done out of paranoia or just the overwhelming need to look busy every time the national budget nears a vote, the DHS has gone overboard in its assessments of potential threats. The shorter of the two lists it has compiled by this point would be titled "Not Terrorists." Over the years, the DHS has conjectured that terrorists are hiding in food trucks, using hotel side entrances, exercising their First Amendment rights, possibly years away from graduating high school… etc.

The DHS also presides over the TSA, a security agency in name only that seems mostly interested in patting down mastectomy patients, running their brusquely officious hands over pre-teens, dumping breast milk and other "explosives precursors" into nearby garbage cans and feeling completely threatened by words printed in foreign languages.

It also keeps an eye on the CBP, which can't seem to stop shooting unarmed people, follow its own guidelines on vehicle searches, and operates a fleet of shiny, expensive and nearly useless drones.

Then there's ICE (with its own morale problems), the IP-focused Keystone Kops whose antics -- including yanking websites away from owners without a word of explanation and returning them years later without an apology, raiding lingerie shops for dangerously unlicensed panties, and struggling to come up with excuses for denying FOIA fee waiver requests -- are only outpaced by the imaginary rights vendettas of the City of London police.

That would be enough to depress anyone, especially the good employees who started out with ideals and enthusiasm but are now forced to answer question after question after question about why working for the nation's largest group of unhinged conspiracy theorists is a bit of a downer. The DHS has dumped a lot of money into divining the sources of its employees' unhappiness. But it seems more interested in spending money than fixing the problems.

The first study cost about $1 million. When it was finished, it was put in a drawer. The next one cost less but duplicated the first. It also ended up in a drawer.

So last year, still stumped about why the employees charged with safeguarding Americans are so unhappy, the department commissioned two more studies.

Yes, if anything's going to fix morale, it's going to be periodic questioning of employees who know their last several answers went completely ignored. Will the latest studies be titled "NO REALLY GUYS THIS TIME WE'RE LISTENING?"

To hear people like new DHS head Jeh Johnson tell it, the agency has never been more interested in improving morale.

Johnson and Deputy Secretary Alejandro Mayorkas have “personally committed themselves to improving the morale and workforce satisfaction across the Department of Homeland Security,” said Ginette Magana, a DHS spokeswoman. “They are directly engaging with employees, listening to their concerns, working diligently to improve employee recognition and training, and are focused on strengthening the skills and abilities of every employee. She said the studies “comprise a first step in a comprehensive process dedicated to tangible results.”

Yeah, but what about all the other "first steps" currently tucked away in drawers, presumably still in mint condition? How many "first steps" and empty promises are DHS employees expected to suffer through before they finally wander away from the metaphoric disinterested, lying spouse they call an employer? "No, really. This time will be different, honey. I SWEAR."

As it stands now, DHS employees pretty much have to stick guns in their mouths before someone will start paying attention to their morale issues.

Three years ago, officials in the department’s office of health affairs, which provides expertise on national security medical issues, began to wonder about the health of one of their own programs. In response to low scores on the viewpoint survey, officials had set up a program, DHSTogether, aimed at making DHS “one of the best places to work in the Federal government.”

The DHS spent over a million dollars on yet another study to find out why this study-prompted "Togetherness" wasn't working. The National Academy of Science's Institute of Medicine arrived at this alarming conclusion.

The report, released in September 2013, concluded that DHSTogether had been starved of money and support from DHS leaders and devolved into little more than an ineffective suicide prevention program.

The DHS apparently didn't feel like talking anyone down, so it buried the report on the report as well.

And the vicious cycle of studies will continue. On top of the two recently-commissioned studies, the agency plans to add a "follow-up" survey to its annual "viewpoint survey," and plans to follow up government contractor ICF's morale study with yet another study once that one's completed.

Clearly, bureaucracy -- especially the combined bureaucracy of 22 agencies forced by terrorists knee-jerk lawmaking to live together under one superagency's roof -- generates more questions than answers. And clearly, in the DHS's case, the questions are the only part that matters.

Filed Under: dhs, ice, morale, studies

Homeland Security Totally Misunderstands Trademark Law; Seizes Perfectly Legal Sporting Goods Anyway

from the because-fuck-you,-we've-got-guns dept

Homeland Security's Immigration & Customs Enforcement group (ICE) has a history of seizing stuff without understanding even the most basic concepts around intellectual property. After all, these are the same meatheads who seized some blogs for alleged copyright infringement, and then had to return some of them over a year later, after they realized it was a mistake. ICE also has a history of using big sporting events to kiss up to the multi-billion dollar sports organizations by shutting down small businesses, protecting Americans from unlicensed underwear. And, of course, what bigger sporting event is there than the Super Bowl. Every year they make a bunch of seizures related to the Superbowl, and this year was no different.

ICE agents gleefully were patrolling Phoenix looking for clothes to seize. But there was just one, rather large, problem with how they went about it. It appears that the people in charge of all this, didn't know the first thing about the "law" they were supposedly enforcing. Seizing counterfeits is about stopping trademark infringement. But not everything using a trademark is infringing. Trademark, after all, is a form of a consumer protection law, designed to protect people from buying one thing, believing it's another. If there's no likelihood of confusion, then ICE isn't supposed to be seizing it (and, yes, there is also dilution of trademark, but ICE isn't supposed to be seizing products that dilute someone's trademark -- just those that are "counterfeit"). But that's not, apparently, how ICE sees things:

The profane debasing of a mascot — and really anything that denigrates a team — is guaranteed to be contraband, said Daniel Modricker, a spokesman for US Immigration and Customs Enforcement. That “Yankees Suck” T-shirt you put on for special occasions? If it uses anything that looks like a team or league logo, it probably constitutes trademark infringement.

Almost all of that is wrong. Using someone else's trademark to comment on them is a perfectly legal use -- and not at all counterfeit. Pretending otherwise gets into some pretty sketchy First Amendment areas, as using a trademarked word, phrase or image to criticize someone is considered protected. But, not to ICE. As Rebecca Tushnet explains:

"Profane debasing"--and when did mascots become sacred?--is not confusing. I don't think ICE has authority to seize diluting merchandise, and anyway very few of these will be using the profaned mascots "as a mark," meaning the dilution exceptions for parody and criticism apply. This is a blatant misunderstanding of the law, being perpetuated by a federal official with only the small reassurance that federal agents won't come down and rip a previously purchased shirt off your back.

Of course, the small time vendor with a table on the street isn't likely to challenge the federal government for stealing his perfectly legal shirts that "debase" a mascot. So ICE's Daniel Modricker gets to spew his ignorant and wrong statements and get away with it. Because ICE is ICE, and this is generally how it goes about its business. It has the guns and it gets to decide the law, no matter what the Constitution has to say about it.

Filed Under: counterfeit, daniel modricker, dhs, first amendment, free speech, homeland security, ice, mascots, seizures, super bowl, trademark