Senator Wyden Warns That Domain Seizures And COICA Undermine Internet Freedom

from the sounds-about-right dept

Senator Wyden continues to be one of the few politicians actually concerned about the impact of the government's expansive view towards seizing domain names and stifling speech online. His latest is to point out that Homeland Security's strategy with these domain seizures appears to be completely in conflict with the State Department's position on internet freedom, as laid out by Hillary Clinton.
Speaking at an event hosted by the Computer and Communications Industry Association (CCIA), Wyden said he sees a tension in the government between the aggressive ICE crackdown and the work of Secretary of State Hillary Clinton to promote Internet freedom. The State Department funds technology aimed at derailing Web censorship by foreign regimes.

Wyden, who commended Clinton for her efforts and said he has spoken with her on the initiative, said domain-name seizures in the U.S. could be a setback to Clinton's Internet freedom work.

"Hopefully, her views will prevail, and not the views of ICE," he said.

Wyden said foreign governments might look at the domain seizures and say, "We've seen it done in the U.S. We have the green light to do it here in our country."
He's absolutely correct, of course, but I'm not sure this line of argument will really work. That's because supporters of domain seizures in the US seem to have a complete mental block on this issue. They claim that such seizures are okay in the US because it's about "stopping people from breaking the law." What they don't realize is that's the identical reason given for seizing domains and websites elsewhere: it's just that the laws are different. In China, the argument for blocking speech has always been to stop people from breaking laws. So I wouldn't be surprised to see the State Department and Hillary Clinton claim they're fine with domain seizures and try to distinguish them from censorship in other countries through a massive level of cognitive dissonance.

I think this is a real problem, honestly. The supporters of domain seizures and laws like COICA simply refuse to recognize how much harm this does to the US's arguments abroad concerning censorship. They have a block, because they think this kind of censorship is "good" so it's either not really censorship, or it's okay. It's this blind spot that will really harm the US's ability to have any real moral leadership on censorship issues in other countries.


Reader Comments (rss)

(Flattened / Threaded)

  1.  
    identicon
    MrWilson, May 4th, 2011 @ 2:28pm

    [insert grandstanding accusation here]

     

    reply to this | link to this | view in thread ]

  2.  
    identicon
    Anonymous Coward, May 4th, 2011 @ 2:30pm

    I think this is a real problem, honestly. The supporters of domain seizures and laws like COICA simply refuse to recognize how much harm this does to the US's arguments abroad concerning censorship. They have a block, because they think this kind of censorship is "good" so it's either not really censorship, or it's okay. It's this blind spot that will really harm the US's ability to have any real moral leadership on censorship issues in other countries.


    The problem there is selfishness. The people in question lack the empathy and self-awareness to understand that laws should be designed to benefit everyone, rather than for their own express benefit. The result is the aforementioned cognitive dissonance: "This censorship is good because I benefit from it, but that censorship is bad because it's censorship".

    That kind of selfish behavior is like taking out a loan: good short-term profit, bad long-term profit. Unfortunately, too many people stop reading at "good short-term profit" and just run with it.

     

    reply to this | link to this | view in thread ]

  3.  
    icon
    weneedhelp (profile), May 4th, 2011 @ 2:31pm

    harm the US's ability to have any real moral leadership

    moral leadership? We had that?

     

    reply to this | link to this | view in thread ]

  4.  
    identicon
    Anonymous Coward, May 4th, 2011 @ 2:45pm

    We won't have any creditability in relationships with other countries. Most of the human rights, freedom of the press, and political prisoner issues the US has trampled over itself and since it's moral house isn't in order, it will have no pressure on the other countries of the world.

    While Hillery was raising cain with China over human rights, China was justifiably able to mock back about the US doing the very same things. If your house isn't in order, pray you don't live in a glass house.

    The on-going issue of the left not recognizing what the right is doing, is busting out at the seams all over. Both this and another are now on the front page here at TD back to back.

     

    reply to this | link to this | view in thread ]

  5.  
    icon
    Jay (profile), May 4th, 2011 @ 2:52pm

    Re: harm the US's ability to have any real moral leadership

    The Supreme Court opened the money flow. Now, no government rep wants to stop it.

     

    reply to this | link to this | view in thread ]

  6.  
    icon
    :Lobo Santo (profile), May 4th, 2011 @ 2:58pm

    Re: harm the US's ability to have any real moral leadership

    Yes, it started about the time Superman was introduced into our culture.

    Oddly enough, it's pretty much completely dead at about the same time Superman is renouncing his American citizenship...

     

    reply to this | link to this | view in thread ]

  7.  
    identicon
    Anonymous Coward, May 4th, 2011 @ 3:11pm

    Re: Re: harm the US's ability to have any real moral leadership

    The fact that Superman is still not in the public domain killed it.

     

    reply to this | link to this | view in thread ]

  8.  
    icon
    Jay (profile), May 4th, 2011 @ 3:34pm

    Re:

    We don't really need credibility, we have the biggest stick. At least, until China begins asking for us to pay our debt back, among our other creditors...

     

    reply to this | link to this | view in thread ]

  9.  
    identicon
    Johnson777, May 4th, 2011 @ 4:54pm

    Domain Seizures

    Also homosexuality is illegal in most countries in Asia and Africa , does that mean their governments can seize domains that promote gay rights?

     

    reply to this | link to this | view in thread ]

  10.  
    identicon
    Anonymous Coward, May 4th, 2011 @ 5:06pm

    They claim that such seizures are okay in the US because it's about "stopping people from breaking the law." What they don't realize is that's the identical reason given for seizing domains and websites elsewhere: it's just that the laws are different.

    So what?

    Are you suggesting that since China regulates the internet in nefarious ways, that the US shouldn't regulate the internet at all?

    Good luck with that.

     

    reply to this | link to this | view in thread ]

  11.  
    identicon
    Anonymous Coward, May 4th, 2011 @ 6:44pm

    Response to: Anonymous Coward on May 4th, 2011 @ 5:06pm

    No. What he is saying is that we can't complain about China censoring in nefarious ways when we too censor in nefarious ways.

     

    reply to this | link to this | view in thread ]

  12.  
    identicon
    Anonymous Coward, May 4th, 2011 @ 8:02pm

    Re: Response to: Anonymous Coward on May 4th, 2011 @ 5:06pm

    Stopping copyright infringement isn't nefarious. Sorry.

     

    reply to this | link to this | view in thread ]

  13.  
    identicon
    mirradric, May 4th, 2011 @ 9:26pm

    Re: Re: Response to: Anonymous Coward on May 4th, 2011 @ 5:06pm

    Example of said mental block in action.

     

    reply to this | link to this | view in thread ]

  14.  
    icon
    velox (profile), May 4th, 2011 @ 10:17pm

    Re: Re: Response to: Anonymous Coward on May 4th, 2011 @ 5:06pm

    "Stopping copyright infringement isn't nefarious. Sorry."
    Nice little fallacious argument you have going there.

    Let me see if I can accurately restate what you are implying: 'Stopping copyright infringement isn't nefarious, so any means of stopping copyright infringement is OK.'

    Instead of stopping with authoritarian surveillance of citizens, and unconstitutional search and seizure, why don't you just move right ahead with more vigorous methods -- something like... a day in jail for every suspected infringing file on your computer.
    One could go on from here with any number of ridiculous impositions upon the populace and draconian punishments. Apparently by your simplistic argument, they would all be fine, so long as one is pursuing the unlimited goal of halting infringement.

    Probably the most nefarious thing about COICA, as it has been proposed, is that the government creates incentives and liability protections to encourage corporate entities to search the content of communication between other private parties -- without probable cause that a crime has been committed.
    How could it be permissible for the government to allow, much less encourage a private entity to do what the government itself could not constitutionally do.

    Note that this is all supposedly in support of laws that are, as I know you are well aware, per Article I, Section 8, Clause 8; to promote the arts and sciences. There is absolutely nothing written there about those concepts that have become the raison d'etre for rivers of lawyers-- "property" and "theft"

     

    reply to this | link to this | view in thread ]

  15.  
    icon
    Brendan (profile), May 4th, 2011 @ 11:48pm

    Re: Re: Response to: Anonymous Coward on May 4th, 2011 @ 5:06pm

    China says the same thing about promoting freedom and democracy. Sorry.

     

    reply to this | link to this | view in thread ]

  16.  
    icon
    The eejit (profile), May 5th, 2011 @ 12:16am

    Re: Re: Response to: Anonymous Coward on May 4th, 2011 @ 5:06pm

    Actually, it is, if you consider the length of copyright is more than most of our lifetimes will be. So I'll tell you what; you come back when Saddam and Osama are alive again.

     

    reply to this | link to this | view in thread ]

  17.  
    identicon
    Anonymous Coward, May 5th, 2011 @ 12:26am

    Re: Re: Re: Response to: Anonymous Coward on May 4th, 2011 @ 5:06pm

    The above post was jointly brought to you by FringeL00ny.com, FUD.com and Freetard.com.

    Sure to make your "sitting on the shitter reading worthless commentary" experience the best since an hour ago.

     

    reply to this | link to this | view in thread ]

  18.  
    icon
    Svante Jorgensen (profile), May 5th, 2011 @ 12:45am

    Re: Re: Re: Response to: Anonymous Coward on May 4th, 2011 @ 5:06pm

    Obvious troll is obvious...

     

    reply to this | link to this | view in thread ]

  19.  
    identicon
    Anonymous Coward, May 5th, 2011 @ 1:08am

    Re: Re: Re: Re: Response to: Anonymous Coward on May 4th, 2011 @ 5:06pm

    Worthless-contribute-nothing-to-society-parasite.

    If you died tomorrow, no one would notice.

    That goes for every member of this site. That's what you're all really angry about.

     

    reply to this | link to this | view in thread ]

  20.  
    icon
    indieThing (profile), May 5th, 2011 @ 4:00am

    Re:

    And good luck to you in regulating the internet.

     

    reply to this | link to this | view in thread ]

  21.  
    identicon
    Paul Keating, May 5th, 2011 @ 4:12am

    New Approach for ICE

    Mike,

    Sorry for the long comment. I tried to email you this but your email keeps bouncing. Please email me and I will gladly give you more materials.

    ICE has apparently started on a new path to seize domains. They are apparently now bypassing the entire judicial process and using a combination of 19 USC 1595a, 18 USC 2320 and 18 USC 2323. These are truly interesting as they are all targeted at “merchandise” To object to the seizure requires posting a bond.

    I have received several from clients of mine who are domain name registrars. Verisign is rolling over on these and taking the domains, demanding that the registrars cancel the registration.

    There are apparently two (2) flavors of the notice. First, they “post” a Notice of Seizure and Intent to Forfeit. Then after a 20 day period they can declare the property forfeited. The 1st form looks somewhat like the following (I have redacted the domains and case numbers for confidentiality purposes):

    “Port Case Number
    Properties Being Forfeited

    201130010000XXXX // XXXX // XXXX // XXXX

    Notice is hereby given of the intent to forfeit the following merchandise under 19 USC 1607. Parties wishing to contest the forfeiture of the item(s) or any part thereof must appear and file with the Fines, Penalties and Forfeitures Officer, U.S. Customs and Border Protection, Seattle, Washington, a claim to such merchandise under 19 USC 1608 and a bond in the penal sum of $5,000.00 or 10 percent of the value of the claimed property, whichever is lower, but not less than $250.00 within twenty (20) calendar days from the date first posted or published. This will stop summary forfeiture proceedings and the case will be sent to the United States Attorney for judicial civil forfeiture action. If posted, the bond must he on Customs Form 301. In order to file a bond, you may wish to consult a Customhouse Broker to assist you. If you are indigent you may not have to post the bond. To get a waiver of the bond, you must fully disclose your finances in a signed statement, i.e. submission of a copy of your latest income tax return, welfare document, etc. In you do not wish to make such a claim in Federal Court, no action is required on your part and the articles will be declared forfeited by default at the end of the twenty (20) day period.

    Date Forfeiture Initiated: February 25, 2011
    Place and Date of Seizure: November 24, 2010, Dulles, Virginia
    Statutory Basis of Seizure: 19 USC 1595a, 18 USC 2320
    Description of Property: Domain names XXXtseries.com", XXXrder.com",
    XXXXmberland.com", XXXXend.com".
    FP&F Case: 201 130010000XXXX // 201 130010000XXXX // 201 130010000XXXX // 201130010000XXXX

    DECLARATION OF ADMINISTRATIVE FORFEITURE

    In accordance with the provisions of Title 19, United States Code, Sections 1608 and 1610, and Title 19, Code of Federal Regulations, Section 162.45, the following described property is hereby declared forfeited for violations of 19 USC 1595a, 18 USC 2320.

    Domain names “XXXtseries.com", XXXrder.com", XXXXmberland.com", XXXXend.com".

    U.S. Customs and Border Protection, Seattle, Washington, has posted a notice of intent to forfeit the above merchandise for three consecutive weeks in the Seattle Customhouse, Seattle, Washington.

    John Helman
    Senior Fines, Penalties and Forfeitures
    Specialist, Seattle, Washington
    Date: 3/28/11”

    The second document is a “Declaration of Administrative Forfeiture” which reads as follows:
    DECLARATION OF ADMINISTRATIVE FORFEITURE

    In accordance with the provisions of Title 19, United States Code, Sections 160711609 and Title 19, Code of Federal Regulations, Part 162.45, the following described property is hereby declared forfeited for violation of:

    CASE NUMBER: 2011-1801-000XXX
    LAWS USED TO FORFEIT THE PROPERTY:19USC1595a, 18USC2323,18USC981
    DESCRIPTION OF PROPERTY FORFEITED:
    Domain name - www.XXXXollection.com

    Notice of Seizure and Intent to Forfeit was posted in the port of Tampa as required by law on the following date: 1/28/11

    Mary Ann Cranford
    Fines, Penalties and Forfeitures Officer


    I particularly like the hat-tip to Due Process in the 2nd notice.

    “Notice of Seizure and Intent to Forfeit was posted in the port of Tampa as required by law on the following date: 1/28/11.”

    Now THAT is due process. Exactly how many domain registrants visit ports of entry to see if their domains have been seized? WHOIS is publicly available. No notice was sent to the registrant. This is absurd.

    Moreover, the statutes upon which they are relying are not exactly supportive.

    19 USC 1595a concerns forfeiture of “every vessel, vehicle, animal, aircraft, or other thing used in, to aid in, or to facilitate, by obtaining information or in any other way, the importation, bringing in, unloading, landing, removal, concealing, harboring, or subsequent transportation of any article which is being or has been introduced, or attempted to be introduced, into the United States contrary to law, whether upon such vessel, vehicle, animal, aircraft, or other thing or otherwise, may be seized and forfeited together with its tackle, apparel, furniture, harness, or equipment. “ (1955a(a)). The remainder of the section deals with the forfeiture of “merchandise”

    18 USC 2320 deals with fines and forfeiture. Most notably, (a) requires specific intent in connection with trafficking counterfeit goods or services. The forfeiture section (b) requires the process set out in 18 USC 2323.

    Best of all, 18USC2320(c) states as follows:
    “(c) All defenses, affirmative defenses and limitations on remedies that would be applicable in an action under the Lanham Act shall be applicable in a prosecution under this Section. In a prosecution under this section, the defendant shall have the burden of proof, by a preponderance of the evidence, of any such affirmative defense.”

    WHOA, …..

    Section 2323 appears to pertain only to “articles” and “property”. Further, it seems to require court involvement as it is referenced in numerous places including “at the conclusion of the forfeiture proceedings, unless otherwise requested by an agency of the United States, the court shall order that any property forfeited under paragraph (1) be destroyed, or otherwise disposed of according to law.
    It would be interesting to see how this plays out. First, whether or not domain names are “ articles” or “property” depends on what State you are in. The issue of whether something is property is a STATE LAW matter. Delaware (home to the .com registry, has repeatedly ruled they are NOT property and that registration is merely a contract right. This was the result of years of work by NSI (then the registry and registrar) when it faced litigation following numerous domain name highjackings brought about by its horrible security. In California it is thought they are property following the 9th Cir. decision in Sex.com. Given that the registry is in Delaware, how can 18 USC 2323 apply?

    So, when faced with criticism, and perhaps an unwilling court following the 1st debacle, what does ICE do? They work with the IP community and dig into their bag of tricks and come up with a way to completely avoid the judicial process. That the law was never intended to cover domain names is obvious by the very nature of their “notice” which is apparently a “nail the paper on the door to the Customshouse”. Customshouses is where importers go (to pay duty). I am not sure what happens in Seattle but I doubt you would find many domain registrants (particularly those not even residing in the US) who even know where the Customshouse is.

    Of course, all of this only “seizes” the domain. All of the content continues to thrive elsewhere.

    And, of course, ICE will argue that the law is broad enough to apply given the wording of Section 1595a(a). However, given the nature of domain names and how they are “used”, the same broad language could result in the forfeiture of the likes of Microsoft (their software is used to build websites and host them), Intel (their microprocessors are in every computer it seems), VeriSign (they in fact control the zone files – without which the domains could not resolve), ICANN (they run the entire mess and if it weren’t for them we would not have to deal with this problem). Ohh, and lets not forget the telcos who bring us the ability to connect to the Internet in the first place.

    BBBUUUUTTTT its piracy!!!!!!!!!!!!!!!!!!

    Paul Keating

     

    reply to this | link to this | view in thread ]

  22.  
    identicon
    abc gum, May 5th, 2011 @ 5:04am

    Re: Re: Re: Re: Re: Response to: Anonymous Coward on May 4th, 2011 @ 5:06pm

    What I really like about the ACs on this site is they always stay on topic and never toss about any silly unrelated nonsense. Keep up the good work.

     

    reply to this | link to this | view in thread ]

  23.  
    identicon
    abc gum, May 5th, 2011 @ 5:10am

    Re: Re: Re: Re: Response to: Anonymous Coward on May 4th, 2011 @ 5:06pm

    Wow, what witty repartee. - Is that all you've got?

    I like how you address all the points of the post to which you respond. It is amazing how well each and every one was refuted with facts and evidence.

     

    reply to this | link to this | view in thread ]

  24.  
    icon
    Shon Gale (profile), May 5th, 2011 @ 5:11am

    Welcome to the Obama Government. One hand don't know what the other hand do. One person speaks and says nothing. Kinda like the sound of one hand clapping.

     

    reply to this | link to this | view in thread ]

  25.  
    identicon
    abc gum, May 5th, 2011 @ 5:14am

    Re: New Approach for ICE

    I bet the bankers are jealous and in awe all at the same time.

     

    reply to this | link to this | view in thread ]

  26.  
    icon
    The eejit (profile), May 5th, 2011 @ 6:22am

    Re: Re: New Approach for ICE

    Screw that, the terrorists are in awe at how self-destructive the US has become.

     

    reply to this | link to this | view in thread ]

  27.  
    icon
    Gwiz (profile), May 5th, 2011 @ 6:55am

    Re: Re: Re: Re: Re: Re: Response to: Anonymous Coward on May 4th, 2011 @ 5:06pm

    What cracks me up is that our distinguished AC there seems to think that the demographic of the readers of this site are 15-20 year-olds living with Mom & Dad.

    According to the latest Quantcast stats the readers of this site are:

    58% are over the age of 35
    53% make 60k or more (indicating professionals in their fields)
    49% are college educated.

     

    reply to this | link to this | view in thread ]

  28.  
    identicon
    Anonymous Coward, May 5th, 2011 @ 11:16am

    When is Mke Masnick going to write a check for the $500 he owes MusiCares?

     

    reply to this | link to this | view in thread ]

  29.  
    identicon
    anothermike, May 5th, 2011 @ 11:46am

    Re:

    No, you're doing it wrong. You start off with "But, but, but" then spin the wheel of hot button issues then shout the issue. Here, like this:

    "But, but, but..."

    /spin

    "CENSORSHIP!"

     

    reply to this | link to this | view in thread ]

  30.  
    identicon
    Wonderwheel, May 6th, 2011 @ 5:32pm

    Wyden

    Ron Wyden needs to educate himself about what's really happening online with regard to piracy. He's correct that domain seizures over overrated, but he DOES need to consider that the enablers of piracy (money makers like Google and other ad providers along with cyber-lockers and payment processors) should be targeted. If you cut of the financial incentive (and cash reward paid to people who upload and get downloads on cyber-locker sites) you will put a big dent in piracy. Of course if NIKE's products could be reproduced with a click of the mouse, he might think differently. Oh, and I think Google has a big hub in Oregon too. Never mind, special interests rule, even with supposedly righteous Democrats.

     

    reply to this | link to this | view in thread ]

  31.  
    icon
    BearGriz72 (profile), May 6th, 2011 @ 8:47pm

    Re: Wyden

    1)He's correct that domain seizures over overrated.
    --- Yes, yes he is... Oregon FTW!

    2) He DOES need to consider that the enablers of piracy ... should be targeted.
    --- Yes Pirates should be stopped. (http://en.wikipedia.org/wiki/Piracy) The question however is what "a war-like act committed by non-state actors against parties of a different nationality, or against vessels of their own nationality at sea, and especially acts of robbery and/or criminal violence at sea" has to do with domain names.

    3) If you cut of the financial incentive ... you will put a big dent in [copyright infringement]. {FTFY}
    --- WRONG, Wrong, and PROVEN wrong.

    4) Of course if NIKE's products could be reproduced with a click of the mouse, he might think differently.
    --- Why? What does Counterfeiting and Trademark have to do with copyright infringement?
    *** The answer? NOTHING! Quit conflating all "intellectual property" (and yes I hate that term too) together.

    5) Yes Google does have a data center complex in The Dalles.
    --- So What? What about Berkeley County, SC · Council Bluffs, IA · Lenoir, NC · Mayes County, OK (http://www.google.com/corporate/datacenter/locations.html) I don't see their senators doing anything.

     

    reply to this | link to this | view in thread ]

  32.  
    icon
    techflaws.org (profile), May 8th, 2011 @ 2:57am

    Re:

    When he does owe it and not a moment earlier.

     

    reply to this | link to this | view in thread ]

  33.  
    icon
    Hephaestus (profile), May 9th, 2011 @ 10:39am

    Re: Re:

    " At least, until China begins asking for us to pay our debt back, among our other creditors..."

    We will just print more money to buy the debt back ... the same way we are doing with QE2

     

    reply to this | link to this | view in thread ]


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