ICE & FBI Hatch Ingenious Plan To Make DVD Piracy Warnings Longer

from the that-oughta-do-it dept

Immigrations & Customs Enforcement, still beset on all sides by unflagging movie piracy, has decided to join forces with the FBI in their proven strategy of targeting every pirate's one true weakness: legitimate customers who bought the DVD. Though the Bureau's lengthy anti-piracy lectures preceding every movie have had limited impact to date, this exciting new partnership promises to inject them with new life by making them last way longer. It will also reinforce the weight of the warning by reminding viewers that ICE's Homeland Security Investigations is also watching, not just those sissies in the FBI. In case that doesn't get the message across, the joint FBI/ICE warning will be followed by a second warning from the National Intellectual Property Rights Coordination Center, which has a less ominous acronym but a much scarier logo:

Ars Technica has answers to all your questions, except for "what's that torrent site called again?"

Will the two screens be shown back to back? Will each screen last for 10 seconds each? Will each screen be unskippable? Yes, yes, and yes.

If you're thinking "why the hell would they subject the only people who aren't pirating films to this treatment?" then congratulations, you're not ICE Director John Morton. The only thing more insane would be starting every movie with instructions on how to invent the DVD player. Apparently Morton sees method in his madness, though, much like how shamans see method in their rain dances:

The idea isn't to deter current pirates, apparently (the new scheme requires all legal purchasers to sit through 20 seconds of warnings each time they pop in a film, but will be totally absent from pirated downloads and bootlegs). It's to educate everyone else. As ICE Director John Morton announced in a statement yesterday, "Law enforcement must continue to expand how it combats criminal activity; public awareness and education are a critical part of that effort."

Well, I guess it is good to see them experimenting with new ways of doing their job. And if it doesn't work, I'm betting they've got some more tricks up their sleeve, like 30-second warnings, 45-second warnings, and possibly even 60-second warnings if they can work out the complex logistics. With law enforcement this innovative, those pirates don't stand a chance.

Filed Under: dvd, fbi, ice, john morton, piracy

ICE Considered One Of The Worst Places To Work In The Federal Government

from the maybe-if-they-spent-time-not-censoring-the-web dept

Last month, we noted the odd propaganda film from ICE director John Morton, in which he seemed to be trying to pat himself on the back and pump up the morale of ICE agents for their hard work in illegally censoring the internet. Perhaps it's because he knew that ICE agents apparently hate working there. An anonymous person pointed us to the news that in a recent ranking of government agencies, ICE ranked very near the bottom -- 222 out of 240 agencies. It seems that morale isn't particularly high there.

The same person pointed us to the news of a leaked memo from Morton concerning his disappointment about these rankings, and planning some sort of typical bureaucratic response to bad rankings: appointing someone to lead the effort to improve morale, looking at other agencies with happier employees and hosting some townhall meetings. Perhaps he could also try keeping ICE agents focused on issues related to their actual mandate, rather than having them work on seizing domain names and censoring the internet. Just a thought.

Filed Under: ice, john morton, morale, working conditions

ICE Propaganda Film Pats Itself On The Back For Censoring The Web; Promises Much More To Come

from the walk-and-talk-john dept

Homeland Security's ICE (Immigration & Customs Enforcement) group has put out a slickly produced video patting itself on the back for all of its work censoring the web in 2011, and promising much more of that kind of thing in the future: It stars ICE Director John Morton, reprising his usual ridiculous refrain in which he conflates actual counterfeit goods with copyright infringement. But this time, he shows off his ability to stroll quickly through a warehouse while doing a walk-and-talk. I have to admit that it feels like a parody video most of the time. He kicks it off with a claim that he's explaining how to "steal an American job." Then he claims, "here's how to save an American job: IPR enforcement!"

He's wrong. First of all, the "job loss" from counterfeits is totally and completely exaggerated. As has been shown by multiple studies, most people buying counterfeits (hell, and downloading infringing works) wouldn't have bought the real thing instead. They know they're buying a fake good. So no "job" is lost there. And, as the government's own GAO noted last year, the idea that this all leads to lost jobs simply isn't supported by the data.

Second, enforcement does not "save jobs." It does put massive burdens on legitimate sites. Something Morton should know about since he's been taking down legitimate American sites with no legal basis for quite some time.

But before we get to that, he shows off some counterfeit products. There's a handbag, some fake drugs (they always have to show the fake drugs, despite it being a tiny issue, but they have to show some sort of "danger"). And then there's a video game mod chip. He says it "allows you to hack into video games and steal the game for free. That's illegal. That's IP theft." Of course, it's debatable if mod-chips are really illegal. They have substantial non-infringing purposes other than "hacking into video games to steal them for free" (do people steal stuff not for free?). But, you know, that's ICE under John Morton: declaring it illegal for you to modify products you legally purchased, like your gaming console. Thanks, US government!

Then we get to website censorship. And boy is he proud of that. You can see him gleaming as he says that ICE has "done a phenomenal job" and "every time they make a bust, every time they make an arrest, an American job is saved."

So, I wonder, can John Morton explain whose job was saved when his staffers incorrectly seized and censored Dajaz1.com for over a year? I'm curious. Because it sure seems like he actually hurt the ability of the Americans who run that site to make money. I'm curious whose job was saved when his staff deported a missing teen to Colombia (where she was not from). Is that the kind of "phenomenal" work under John Morton we should expect more of?

He then shows off "the news coverage" that ICE has gotten for seizing websites. Notice that he leaves out the stories about the mistaken seizure of multiple websites beyond Dajaz1. Like the seizure of 84,000 legitimate sites that were replaced with a statement claiming that they were all involved in child porn. Somehow those clips just didn't make the cut. Phenomenal work "saving American jobs!"

Morton goes on to talk up how "proud of the results" he is over the seizing of websites. Once again, no mention of the ones he seized by mistake, causing tremendous harm to those who he falsely declared as criminals. What's amazing is that he's never issued an apology over those false seizures. Instead, he's "proud of the phenomenal job" his team has done? What a joke.

Finally, he highlights the PSA that ICE put on the websites they forfeited. What he leaves out, of course, is that the PSA was both created by and owned by NBC Universal -- something ICE has never publicly admitted, but which we found out via FOIA requests. It's still shocking that a government agency would be using misleading propaganda from a private company and pretending that it's an official government production. Even worse, despite numerous requests, ICE has failed to show any proof that it properly licensed the video from NBC Universal, leading us to wonder if they "pirated" it.

ICE under John Morton has become a massive joke and a disgrace to American ideals of innocent until proven guilty and important things like free speech and due process. Rather than making this joke of a video (which certainly has Hollywood-style production... I wonder how that happened...), Morton should be issuing apologies for the mistakes that were made under his watch, and tendering his resignation. Instead, he's celebrating? Sickening.

Filed Under: censorship, counterfeiting, domains, homeland security, ice, john morton, operation in our sites

Senator Wyden Demands Answers About Feds' Seizure Of Dajaz1

from the you-thought-it-was-going-away? dept

If the feds thought that they could seize the Dajaz1.com blog, hold it for a year in secret, then return it and pretend nothing really happened... it appears they may be in for a bit of a surprise. Senator Ron Wyden has begun his investigation into the matter, sending detailed requests for information from Attorney General Eric Holder, ICE director John Morton and White House IP Czar Victoria Espinel. You can see the three letters embedded below. There are a lot of questions to each of them, with a big focus on who they were talking to about the seizures (e.g., the RIAA) and what they were saying. They also ask questions about the legal basis for the seizures and even the training and procedures involved. I'll certainly be interested to see the replies when they come in...

Filed Under: constitution, doj, domain seizures, due process, eric holder, fifth amendment, first amendment, free speech, ice, john morton, operation in our sites, prior restraint, ron wyden, victoria espinel
Companies: dajaz1, riaa

White House's Totally Clueless Response To Copyright Infringement: Call In McGruff The Crime Dog

from the this-apparently-is-not-a-joke dept

The White House has shown itself to be totally and completely out of touch on intellectual property issues for a while, so it should come as little surprise that it went even further into silly town, with a big White House briefing, involving IP Czar Victoria Espinel, Attorney General Eric Holder, Acting Deputy Secretary Rebecca Blank and ICE boss John (due process? what due process?) Morton to announce (I'm not kidding) that McGruff the Crime Dog was taking a bite out of "intellectual property theft."

Of course, the first thing McGruff the Crime Dog (and our illustrious White House officials) might want to do is learn what the actual law says and recognize that infringement and theft are two different things. It seems like in all his "biting" out of crime, McGruff forgot that lying about what the law actually is isn't a particularly good idea.

The campaign is really ridiculous, with tons of absolutely laughable statements, debunked claims and web design from a decade ago. For example, it takes the famously and thoroughly debunked (years ago!) claims that "counterfeiting and piracy costs the U.S. economy more than $250 billion in lost revenue and 750,000 jobs every year." Those numbers came from the upper end of a "stick your finger in the air" estimate from a few decades ago. And they have no bearing on reality. Even the US government in the form of the GAO has debunked these numbers. So why is the White House standing behind them? Espinel isn't stupid. She knows that these numbers are false and have been shown to be false. Why would she support a campaign based on them?

The site just gets more and more full of stupid the deeper you dig. It feels like it was put together by someone with only a passing familiarity with the actual debate on copyright infringement (and one that is about 10 years out of date) and a heavy dose of US Chamber of Commerce propaganda. It's like what you'd get if you simply hired some random clueless ad agency to create the campaign -- which it appears is exactly what was done here. Take a bow, CauseWay Agency of Westport Connecticut. You bring the debate over infringement down to new lows by repeating long debunked information and stats as if it were factual. Next time, maybe find someone who actually understands these issues.

Take this page of "facts" for example (complete with stock photo of a girl using a rather old ipod.

Piracy of intellectual property that’s protected by copyright law is a serious crime. Not only does it rob the makers of recordings, videos, movies, games, and other creative works of the money they are entitled to, but it costs tens of thousands of people their jobs each year. It also deprives governments at all levels of tax revenue. Piracy itself is a crime, and it causes an increase in other types of crime. Gangs and organized crime groups have both been linked to the piracy of creative work.

Almost everything in that paragraph is either wrong or highly misleading. Most infringement is a civil offense. Some may be criminal, but most of it is not. Implying otherwise is pretty sleazy. And someone sharing some stuff with a friend is hardly "robbing" anyone. The jobs estimates have already been debunked. The "tax" claims have also been debunked years ago, based on pretending that money not spent on content never gets spent.

Worst of all? That whole thing about "linked to gangs and organized crime"? Totally and completely debunked. SSRC investigated such reports in their report that came out earlier this year and it could find no evidence to support any links to organized crime or gangs, and pointed to additional research that found "no overt references to professional organized crime groups" anywhere in relation to copyright infringement. The one key study that claimed there was such a connection was from a RAND report that involved "Decades-old stories... recycled as proof of contemporary terrorist connections, anecdotes... as evidence of wider systemic linkages, and the threshold for what counts as organized crime is set very low." In other words, there's no there there. At all.

Why would the White House support something so clearly false?

Pirated materials are everywhere. All you have to do is walk down a city street to see all the CDs and DVDs for sale by street vendors.

Hello five years ago! As that same SSRC research found, CD and DVD bootlegging by street vendors has been decimated itself by competition online: "they piled out of the business in the past decade as profit margins on pirated CDs and DVDs collapsed. We see no evidence that DVD piracy is still a high margin business... Rather, our work documents that pirate prices have fallen dramatically as burners became cheap in the early 2000s and, more recently, as non-commercial internet-based file sharing began to displace DVD piracy." Someone should tell the White House to update their out of date report.

Making unauthorized copies of these creative works is against the law, and breaking it may subject the person who does it to civil and criminal liability—especially if they distribute the stolen product to others. The penalties for first-time offenders include jail time of up to five years and fines of up to $250,000.

Holy exaggeration McGruff! Making unauthorized copies may be against the law. They might also be fair use or allowed for the purposes of backing up legally obtained materials. Merely making a copy is also almost certainly not criminal infringement, not subject to jail time or fines up to $250,000 (yet, though we'll see what happens with various laws...).

Once a tune or movie is posted on the Internet, it lives forever—and the artist behind the product is forever deprived of income.

Really, now?

When you buy a tune on the Internet and download it, make sure you don’t send a copy to a friend or someone who might sell it to others

Wait, what? The White House and McGruff think that people are selling the MP3s their friends send them?

If you get a tune from someone, don’t re-send it to others.

What if the artist wants you to send it to others?

Don’t instant message a tune.

Just yesterday I sent a friend of mine a song via IM that was released under a Creative Commons license. Why shouldn't I do this? Really. Why?

Don’t burn CDs or DVDs.

Why not? Depending on the context, this can be absolutely legal. These days, CDs and DVDs are kinda outdated, but is the White House and McGruff now arguing that making a mixtape is a crime?

If shopping online, beware of sites that aren’t familiar to you—and that are selling expensive products at prices that are way too good.

Watch out, GroupOn, McGruff is ready to take a bite out of you.

About the only nod to the idea that infringement can actually be a market opportunity occurs on the trends page that more or less reprises the story we recently had about how Rovio (makers of Angry Birds) discovered that infringement in China wasn't actually a problem. This seems like perfect evidence that (as many people have been pointing out for ages), this is a business model issue, and those who are smart can take advantage of them.

One anomaly to the damage caused by piracy recently took place in China, where the small Danish company that makes the "Angry Birds" game actually found a benefit in the widespread, illegal copying of the game, which has been downloaded 50 million times in that country. The company turned the widespread knowledge of its brand in China that resulted from the piracy into a marketing advantage for its other products in the country. Moreover, since consumers couldn’t tell the difference between the fake and genuine products, and sales of the game skyrocketed. In the United States, however, piracy of creative products can damage the brand of the original manufacturer when consumers can’t tell the difference between a counterfeited product, which may be shoddy, and the genuine article. Cheapening of the brand can be a serious problem, especially as reputations are hard to recover when lost.

First of all, McGruff may have just caused an international incident there. Rovio is a Finnish company, not a Danish one. Seriously. Don't they have anyone looking over this stuff? Second, notice that they ignore the key point of the story: Rovio didn't freak out, but embraced the market, used the infringement as market data on what to do, and then came out with a better offering for the market, not one that users "couldn't tell the difference" on. The McGruff report makes it sound like Chinese people are a bunch of idiots who buy Angry Birds products willy nilly, some legit, some not. And somehow, in the US things are different?

This honestly may be the most poorly conceived "anti-piracy" campaign ever. It makes the White House look pretty damn foolish.

Oh, and then there are the videos. How could we forget the videos. Some propaganda PSAs that again go back to bootleg DVDs, claiming that they lead to child labor and gangland murder. Amusingly, the title of the marketing campaign is "Get Real." If only the National Crime Prevention Council did "Get Real" and decided to stop repeating these debunked claims. Then there's the heartstrings-pulling video of a young woman busking in a subway station, with her guitar case open with some cash. People stop, listen, and then take her cash. It's a metaphor! For something. I'm not sure what. Because the internet is kinda the opposite. People who have set up donation and pay what you want models find that fans donate. No one takes money away.

In the end, the whole thing actually makes the White House look really, really bad. It could have been a real leader here, outlined the actual issues with infringement, how the market is changing. It could have pointed out resources showing those who are adapting, highlighting strategies and business models that work. It could have pointed out actual data (not old, debunked or made up stats) that show more content than ever before is being produced today, more people are earning money making content than ever before, and that the overall size of the content industries continues to grow. All of that would be useful. None of that is here. Just pure FUD.

For what purpose? It's not clear. McGruff is aimed at kids, but multiple studies (including the SSRC study) have looked at "education campaigns" on copyright infringement and have found that they have no impact at all. It's not an education issue. It's that people intrinsically don't see what's wrong with sharing music and movies in many cases. And the really bizarre part is I have no clue who this campaign is actually targeted at. It feels like it was perhaps targeted at people who aren't on the internet and who live in 2003 or so. What a waste of time, and what a shame that the White House would put a stamp of approval on such an amateurish mess.

Filed Under: anti-piracy, eric holder, infringement, john morton, mcgruff the crime dog, victoria espinel, white house

Parade Of Strawmen Dominate House Hearing About Online Infringement

from the the-lies-told-to-congress dept

We've already mentioned how the House's Hearing on: "Promoting Investment and Protecting Commerce Online: Legitimate Sites v. Parasites" turned into something of a bitchfest at Google for not waving a magic wand and stopping infringement. However, I also wanted to look at the prepared statements of the four participants, which seemed to overflow with ridiculous strawmen.

First up, we have esteemed and respected First Amendment lawyer Floyd Abrams, who (it is always said) defended the NY Times in the Pentagon Papers case many years ago. While Abrams is widely respected, it feels like lately he's been getting quite sloppy in his thinking. Late last year, he published a piece trying to differentiate Wikileaks from the NY Times/Pentagon Papers situation, and was widely criticized for getting many of his facts wrong -- undermining his entire argument.

Separately, various parties in the entertainment industry apparently hired Abrams to write a paper defending COICA and domain seizures as not violating the First Amendment. The entertainment industry and domain seizure supporters now point to that paper and stick their fingers in their ears every time anyone points out how domain seizures are, quite clearly, prior restraint. At the hearing, Abrams reprises this "there's no violation" (pdf) claim, but once again the reasoning is tortured, at best, and built by setting up strawmen to knock down, initially, before a more balanced section later in his talk. From the beginning though, strawmen abound:

It is one thing to say that the Internet must be free; it is something else to say that it must be lawless. Even the Wild West had sheriffs, and even those who use the Internet must obey duly adopted laws.... Thus, it is no surprise that libel law routinely applies to material that appears on the Internet just as it does to other material.... Copyright law is no different. One current treatise succinctly notes, "[a]ll existing copyright protections are applicable to the Internet."

Note the strawman? He seems to be claiming that critics of domain seizures are suggesting copyright law does not apply online. But that's simply not true at all. Why make that claim other than to avoid the actual First Amendment issues raised?

The law could not be clearer, however, that injunctions are a longstanding, constitutionally sanctioned way to remedy and prevent copyright violations. That premise was explicit in the critical concurring opinion in the Supreme Court’s most famous prior restraint case, assessing publication of the Pentagon Papers in New York Times Co. v. United States. As Justice Byron White’s concurring opinion observed in that case, "no one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another."

Again, this is the same strawman. No one is arguing that copyright infringement cannot not be dealt with via injunctions. We're arguing that non-infringing speech is being taken down without a proper injunction. Abrams does address some of these issues later in his talk, and even brings up the takedown of mooo.com. While he urges that Congress understand the tradeoffs, he doesn't seem particularly troubled by the existing mistakes made in seizing domains.

Finally, at the end of his talk, he goes back to the strawmen. He brings up two arguments that he claims he hears from civil liberties groups, who he normally sides with, which he disagrees over. The first is that censorship by seizing domain names makes the US less credible in discussions with other countries who censor. Abrams dismisses this by saying it's okay to censor this way because copyright infringement is not protected by the First Amendment. Again, he is missing the point in a big, bad and dangerous way. The concern people have is not about infringement being censored. After all, specific instances of infringement can be targeted. The concern is over the non-infringing speech that is also censored as a part of this. On top of that, he doesn't seem to understand how these seizures are already being used by foreign nations who censor content. They are simply mimicking Abram's defense here. When he says "copyright infringement is not free speech," they just say "right, same thing here, speech promoting other political parties is not free speech."

Abrams second "objection" that he's heard from civil liberties groups is "that stealing is somehow less offensive when carried out online." I'm not sure from whom he heard that, because I've never heard that argument made at all and I follow this stuff pretty closely. I'm guessing he's conflating a few different issues. What many people will point out is that (1) infringement is different than theft and (2) infringement online has a very different impact than "theft" of the same content in the offline world and (3) there are different and much more effective ways to deal with infringement online (mostly by way of smarter business models). That's a very different argument than the strawman Abrams presents in his testimony.

Moving on, we have our favorite strawman conflater, John Morton from Homeland Security's Immigrations and Customs Enforcement unit, who also reprised various strawmen (pdf) in his statement. Morton's specialty is in talking up the harm and danger of one specific type of trademark infringement, vaguely lump it together with unsubstantiated (or outright false) claims from industry representatives, and then pop out at the other end with a claim that stopping copyright infringement is necessary. It's ridiculous when you break it down, but watch him do it here:

Criminals are attempting to steal American ideas and products and sell them over the Internet, in flea markets, in legitimate retail outlets and elsewhere

Okay. That's about counterfeiting, which is trademark infringement. Check.

From counterfeit pharmaceuticals and electronics to pirated movies, music and software, IP thieves undermine the U.S. economy and jeopardize public safety.

Well, there's a variety of different things there, and the claims that counterfeit movies, music and software jeopardize public safety has been shown nowhere, but it's nice to see Morton lump them all together. The only area where there is a potential risk for safety is with counterfeit fake drugs, but Morton and ICE never seem to distinguish between grey market generic pills that are perfectly safe and helpful and actual fake drugs. Because, you know, that would show how small this issue really is.

American jobs are being lost, American innovation is being diluted and the public health and safety of Americans is at risk -- and organized criminal enterprises are profiting from their increasing involvement in IP theft.

Almost nothing in the statement above can be supported by actual evidence. The claims of job losses have been debunked. The public safety issues are extremely limited to very specific cases, though Morton pretends it applies to everything he's talking about, and outside of a very small set of trademark infringement, the claims of organized crime profiting from this stuff has also been totally debunked (the recent SSRC report had a nice section debunking this -- and yet Morton still claims it's true). He's pushing past strawmen into lying.

From there he goes on to talk about the importance of enforcement (i.e, play up his own role), but really focuses mainly on copyright issues, which again, applies to almost none of what he set up in the intro to his speech. It's the worst kind of strawman conflation out there. Morton goes on to highlight various enforcement efforts, including praising the domain seizues, insisting there's no due process problems with taking down non-infringing speech with no notice to website owners, because they're free to protest later through the courts. Basically, it's the same strawman speech he's given before, which responds to none of the serious questions raised by the massive technical and legal errors made by the staff working for him.

Those were the two key speeches that were problematic. GoDaddy also gave a presentation (pdf), which is basically all about how it is quick to respond to law enforcement and claims of illegal activity and suspended 150,000 websites last year. Odd that there don't appear to be concerns that it may have done so overzealously, as is often accused. However, GoDaddy does point out that it has some concerns about COICA, and specifically with the DNS filtering aspects of it. And, finally, as already mentioned, Google explained why it's not the enemy (pdf) but that wasn't what the committee wanted to hear. All four speeches are embedded below.

Filed Under: coica, congress, copyright, floyd abrams, infringement, john morton, sites
Companies: godaddy, google

ICE Boss: It's Okay To Ignore The Constitution If It's To Protect Companies

from the how-nice-of-them dept

While the folks at Homeland Security keep telling me that they simply cannot speak publicly about the seizure of various domain names -- and specifically the numerous mistakes they've made that appear to clearly violate both the First Amendment and Due Process rules -- it seems they have no problem talking about the domain seizures to folks in the press who don't bother to ask tough questions.

ICE boss John Morton did an interview with Politico, where he trots out a bunch of highly questionable statements about the domain seizures, including claiming that it's all okay for them to do this because they're trying to "protect U.S. industry" rather than "regulate the internet." But that's not the role of Homeland Security or ICE. And there are limits on what ICE is actually allowed to do, and Morton's technically clueless agents seem to have ignored many of those rules.

"We don't have any interest in going after bloggers or discussion boards," he said. "We're not about what is being said by anybody. We're about making sure that the intellectual property laws of the United States, which are clear, are enforced. When somebody spends hundreds of millions of dollars to develop the next movie or a billion dollars to develop the next heart medicine, the innovation and the enterprise that went into that effort is protected as the law provides. It's that simple."

There's so much wrong in that statement that it should be grounds for dismissal. Morton is not representing what has happened, the law or the facts accurately here. He's lying to the American public (and to Politico, who appears to have failed to call him on any of it). First of all, if they don't have any interest in going after bloggers or discussion boards, why did they? Second, if the intellectual property laws of the US are "clear" -- why did ICE not use them and actually get anyone charged with infringement? Third, the laws aren't that clear -- which is why we (normally) have trials to make sure there was actual infringement. If ICE had been willing to let due process play out, it would have avoided embarrassing mistakes, like taking down 84,000 websites because a few may have had illegal content. Or seizing a blog (yes, a blog, despite what he says) that posted links to music elsewhere that was sent by the labels and artists. And, when someone spends all that money to develop something, there are plenty of business models for them to use, and they have every right to use civil laws to go after those who violate their rights. What they shouldn't have is some government agents taking down websites with no due process, seizing plenty of protected speech in the process.

Finally, for Morton to claim "it's that simple," when the law is anything but simple should get the man fired. Seriously. No one who knows anything about the law thinks it's that simple. He shouldn't be in charge of ICE if he thinks that the laws are as simple as he makes out. It's not, and either he knows it and he's lying or he doesn't know it and he's unqualified for the job. Which is it? I figure I'll send these questions to my friendly press contact at Homeland Security, and I imagine the answer will be the same: "I'll have to direct you to the Justice Department on those questions." Because actually responding to American citizens whose rights he seems to have no problem trampling is not in his job description. Helping Hollywood by violating multiple parts of the Constitution is much more fun.

Morton also seems to think there's simply no legal questions in seizing domain names:

"We can seize and forfeit them just like we seize and forfeit bank accounts, houses and vehicles that are used in other crimes," he said. "Any instrument of a crime is subject to our jurisdiction in terms of seizure and forfeit."

Again this is incorrect on a number of levels, and again raises questions about Morton's competence to hold the job he holds. You can seize property, but the case law is pretty clear on the different rules when it comes to seizing speech. And he's never responded to that at all. Because, of course, he cannot.

John Morton seems to think it's fine to be censor-in-chief and to violate multiple parts of the US Constitution, because it protects a few businesses who have failed to adapt their business models. This is a sickening display of the takeover of the American government by corporations.

Filed Under: constitution, domain seizures, homeland security, ice, john morton

Senator Wyden Asks WTF Is Up With Homeland Security Domain Seizures

from the good-for-him dept

We've been talking a lot about Senator Ron Wyden lately, as he appears to be one of the few folks left in Washington DC who seem to actually care about overreaching efforts by law enforcement -- especially in the area of copyright. We've talked about his efforts to block COICA, question ACTA and require more oversight on government spying. He's also not been shy about standing up for what he believes in, even when corporate interests start pressuring him, such as his eloquent response to companies who urged him to support censorship via COICA.

And, now, he's come out expressing serious concern about the recent domain name seizures done by Homeland Security's Immigration and Customs Enforcement (ICE) group. In a letter sent to Attorney General Eric Holder and ICE director John Morton (embedded below), Senator Wyden raises numerous questions, and it's clear that he thinks ICE has gone way beyond what is reasonable and legal. Many of the points in his letter seem to come directly from issues we've raised here on Techdirt -- including (specifically) the fact that all of the music used to seize the dajaz1.com domain were sent by music industry or artist representatives. He also seems quite concerned about who is driving these seizures, and if it's just companies trying to "create competitive advantages in the marketplace."

The letter highlights that we already have a process in the DMCA that lets copyright holders target and remove infringing content, and do so in a way "without impinging on legitimate speech that the website may also facilitate." He also is clearly concerned about the lack of due process and the fact that these seizures do "not appear to give targeted websites an opportunity to defend themselves before sanctions are imposed." He also notes that there's still a "contentious legal debate about when a website may be held liable for infringing activities by its users" -- a point that ICE continues to seem to think is settled law, when it is anything but. In fact, he notes: "I worry that domain name seizures could function as a means for end-running the normal legal process in order to target websites that may prevail in full court." Finally, he points out that the whole thing is "alarmingly unprecedented in breadth of its potential reach."

From there, he lists out a series of questions that he wants Holder and Morton to answer:

1. How does ICE and DoJ measure the effectiveness of Operation In our Sites and domain seizures more broadly -- how does the government measure the benefits and costs of seizing domain names?
   
2. Of the nearly 100 domain names seized by the Obama Administration over the last 9 months, how many prosecutions were initiated, how many indictments obtained, and how were the operators of these domain names provided due process?
   
3. What is the process for selecting a domain name for seizure and, specifically, what criteria are used?
   1. Does the Administration make any distinction between domain names that are operated overseas and those that are operated in the U.S.?
      
   2. Does the Administration consider whether a domain name operated overseas is in compliance with the domestic law from which the domain name is operated?
      
   3. What standard does the Administration use to ensure that domains are not seized that also facilitate legitimate speech?
      
   4. What standards does ICE use to ensure that it does not seize the domain names of websites the legal status of which could be subject to legitimate debate in a U.S. court of law; how does ICE ensure that seizures target on the true "bad actors?"
4. Does the Administration believe that hyperlinks to domain names that offer downloadable infringing content represent a distribution of infringing content, or do they represent speech?
   
5. Does the Administration believe that websites that facilitate discussion about where to find infringing content on the Internet represents speech or the distribution of infringed content? What if the discussion on these websites includes hyperlinks to websites that offer downloadable, infringing content?
   
6. What standard does DoJ expect foreign countries to use when determining whether to seize a domain name controlled in the U.S. for copyright infringement?
   
7. Did DoJ and ICE take into account the legality of Rojadirecta.org before it seized its domain name? If so, did DoJ and ICE consult with the Department of State or the United States Trade Representative before seizing this site in order to consider how doing so is consistent with U.S. foreign policy and commercial objectives?
   
8. In an affidavit written by Special Agent Andrew Reynolds, he uses his ability to download four specific songs on the domain name dajaz1.com as justification for seizure of this domain name. According to press accounts, the songs in question were legally provided to the operator of the domain name for the purpose of distribution. Please explain the Administration's justification for continued seizure of this domain name and its rationale for not providing this domain name operator, and others, due process.
   
9. Can you please provide to me a list of all the domain names seized by the Obama Administration since January of 2009 and provide the basis for their seizure?
   
10. Do ICE and DoJ keep a record of who meets with federal law enforcement about particular domain names? If not, would you consider keeping such a record and making it publicly available, to ensure transparency in government and that Operation in our Sites is not used to create competitive advantages in the marketplace?

He basically seems to hit on all of the key points, so it'll be interesting to see how Holder and Morton reply, but given their existing responses in various speeches, it's not hard to predict that they'll sidestep most of these questions, and go with something along the lines of "infringement bad! danger danger!" Either way, kudos (again) to Senator Wyden for being one of the few politicians left who really does appear to care about free speech and due process.

Filed Under: coica, copyright, domain seizures, eric holder, homeland security, ice, john morton, operation in our sites, ron wyden

Customs Boss Defends Internet Censorship; Says More Is On The Way

from the same-rules,-minus-the-first-amendment dept

Over at the State of the Net conference in Washington DC today, John Morton, the head of Immigration and Customs Enforcement (ICE) at Homeland Security felt it was time to defend ICE's seizure of domain names. Of course, he did not actually address the many different problems with the details of how they seized the domains. Instead, he just insisted that ICE had no "intention" of limiting free speech. That they did so in clear violation of the law... well... just skip over that part.

He also claimed that "the same rules must apply" both online and off -- which is entirely true. So I'm curious why he thinks the First Amendment and all of the case law concerning prior restraint or shutting down legitimate speech don't apply online. Not surprisingly, he ignores all of that as well.

He also stated:

"We can't live in a society where the Internet has some protection for criminals. ... We are going to stay at it. I am not apologetic on this last point."

Here he's just being disingenuous. The law does not protect criminals. There are existing laws that allow the government or private parties to file a lawsuit against anyone accused of breaking the law, and allowing (as per our normal due process system) an adversarial hearing to be had in court so that both sides get their say. What Morton and his team did ignores all of that. It ignored due process. It seized sites that had substantial non-infringing content, it used serious technical and legal errors to get a judge to rubber stamp seizures of domain names that were widely used by the music industry to promote their own works. And he addresses none of that.

Finally, he claims that the domain seizures were really effective because a bunch of other websites shut down in the wake of the seizures. This is kind of funny because of how naive it makes Morton and ICE appear. Yes, some websites that knew they would be equally easy for Homeland Security to seize without due process or respect for the First Amdenment switched to other URLs outside of US control, but it's pretty naive to think that those operating the sites simply stopped doing so.

No one has yet come up with a reasonable explanation why suing these sites first was not possible. Why did they need to be seized? The only explanation given so far was that some third party might get ahold of them and use them for nefarious purposes, but we already explained how that makes no sense. A judge could easily have issued an injunction barring the sale of the domain names while a lawsuit was ongoing. It's troubling that the best John Morton can do is to simply make stuff up to support a campaign of censorship on behalf of the entertainment industry (who was such a close partner that the initial part of this campaign was announced from Disney's headquarters). We should be quite concerned when law enforcement officials are taking orders from companies, and the best defense they can come up with to support these actions is to lie and pretend that there were no other legal means that do not violate free speech or due process.

Filed Under: domain seizures, homeland security, ice, john morton

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