Rep. Lofgren Challenges IP Czar On Legality Of Domain Seizures

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

A friend of the site sent over a great video of Rep. Zoe Lofgren quizzing IP Czar Victoria Espinel about the recent domain name seizures. It’s clear that Lofgren has been well-briefed on the topic (which makes her one of very few elected officials). Lofgren has always been really good on copyright issues, so this isn’t a huge surprise, though I wish she were more vocal on some of these issues. What’s really stunning is Espinel’s deer-in-headlights reaction to the multiple questions… and the fact that she didn’t really address the key questions:

She starts out her response with a total non sequitur about how copyright infringement is an important issue and part of her mandate. That may be true, but what Lofgren had specifically asked her was why ICE and Homeland Security are spending taxpayer dollars on a few random blogs, rather than actual criminals.

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

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

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

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

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

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