Early this morning, news started breaking that the German police had seized the German Pirate Party's servers. The timing was interesting, in that it happened just two days before an election, which certainly seems questionable. The details, so far, suggest that the action wasn't against the party, but due to a French complaint, because Anonymous was using the Etherpad installation on the server, PiratenPad, to communicate and plan. If you're unfamiliar with Etherpad, it's a pretty popular online collaboration tool. I've used it for other things, including preparing notes for conferences. It's ridiculous overkill to seize an entire server because of the way some people were using Etherpad. It makes no sense, and shows (once again) how law enforcement seems to overreact to things they just don't understand.

Terry Hart, who has become the go-to guy for eloquent defenses of the copyright maximalist's legal arguments lately, is at it again with a post supposedly claiming to debunk some of the posts from here on Techdirt concerning Homeland Security's seizure of domain names. Specifically, the posts that he claims to be debunking are the three posts I made highlighting the technical and legal errors in the affidavit ICE special agent Andrew Reynolds used to get a warrant to seize the domains, as well as the post which highlighted how all four songs he named to get "probable cause" for the seizure of the popular DJ blog dajaz1.com were all sent legally for the purpose of promotions.

Hart claims that if there are any errors in the affidavit they don't matter:

Are there errors in the affidavit? If so, do they even matter? The answer is no.

Hart's reasoning is that since Homeland Security only has to show "probable cause" in its affidavit, the various errors don't matter. Now, without a doubt, the standard for probable cause is different than for guilt in a trial. But that does not mean there are no standards. He quotes various Supreme Court rulings, which grant law enforcement leeway in filing the affidavits and reaching the probable cause barriers, and specifically noting that some level of mistakes are allowed. Specifically, he quotes Brinegar v. United States, where the court gives law enforcement some leeway for errors:

These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice.

With all due respect to Hart, I believe his analysis falls short on a variety of different factors. First, I believe he greatly simplifies the overall ruling in Brinegar to a level that the Court almost certainly did not intend. It does allow for some mistakes (in Brinegar it was a small one). It does not allow for massive mistakes that undermine the entire probability equation that makes up probable cause. Obviously, it's expected that sometimes errors will be made. But, given the vast number of errors in this affidavit, combined with the seriousness of those errors, and the fact that (especially with dajaz1) they made up the very core of the probable cause argument, it would seem that the "balance" would shift against this affidavit having been properly executed.

Furthermore, among the Supreme Court quotes that Hart uses to support his argument is the idea that mistakes are okay because the affidavits are done "in the midst of haste of a criminal investigation." There was no urgency here, however. These sites had all been operating for years, and there was no likelihood that they would suddenly disappear. There was no reason for haste, and thus, less of an excuse for the sort of errors which may be acceptable under other circumstances. Even Hart admits that the "leeway" is about "the realities of law enforcement." The realities in this case were that there was no such urgency, and thus the mistakes are less excusable than they might be elsewhere.

More serious than this is the fact that Hart seems to ignore the specifics of what was seized and why. He notes, accurately, that seizure is much like an arrest, done prior to a trial, but (conveniently) leaves out the basis for seizures, which is supposed to be about preventing the destruction of evidence. As the Court notes in Heller v. New York, the purpose of content-based seizures is "preserving it as evidence." As we have already noted, that makes little sense in this situation, as the domain names would not and could not be "destroyed," in any meaningful manner -- and it's easy to copy the contents of the site to preserve that as evidence. Agent Reynolds explanation for why a seizure was necessary was that he was afraid that some third party might somehow get the domain name and continue the criminal copyright infringement, ignoring that an injunction could easily prevent that, and the actual likelihood of that scenario happening was close to nil.

However, the biggest flaw in Hart's argument is that he focuses solely on the issue of probable cause for warrants, and pays no attention to the key issue that we brought up: how seizing full domain names without an adversarial hearing, based on a series of legal and technical errors is almost certainly prior restraint, and a violation of the First Amendment. As was made quite clear in Fort Wayne Books, Inc. v. Indiana, when a seizure involves issues of protected speech, a higher bar is required:

Thus, while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved... It is "[t]he risk of prior restraint, which is the underlying basis for the special Fourth Amendment protections accorded searches for and seizure of First Amendment materials" that motivates this rule.

This line of thinking goes back through a long, long, long line of cases, many of which repeat the famous line: "Any system of prior restraints of expression comes to this Court bearing a heavy presumption against its constitutional validity." In seizure cases where expressive speech is part of what is removed from circulation, the bar is higher than your average probable cause. That's why those errors are incredibly important, and the lack of any attempt to avoid First Amendment issues is glaring. Hart doesn't mention any of this, which I find surprising.

Finally, Hart closes his post (somewhat out of character for him) by suggesting our motivations for highlighting the problematic nature of the affidavit, arguing that we really don't care about the errors, and our posts are really just another way of attacking copyright law. I would suggest that Hart focus his analysis on legal issues, rather than playing amateur psychologist. My problem with the seizures is not about copyright law (though, I obviously have serious concerns about copyright law as well), but with the clear issue of a violation of the First Amendment. Separately, while Hart seems fine with it (as do the courts), I remain seriously troubled by the entire seizure process, which is widely abused, in cases where it has nothing to do with taking possession of evidence that might otherwise disappear. Playing those concerns down because there's a copyright element to this and I'm a critic of copyright law as it stands today is simply inaccurate, and seems like a cheap shot designed -- unfairly -- to attack my credibility on the situation at hand.

While we've been paying a lot of attention to the domain seizures by Homeland Security's ICE (Immigration & Customs Enforcement) group in November, we also covered a similar operation that took place back in June. It's been noted that no actual charges have been filed against the operators of those sites. But in early December, without most people noticing, apparently ICE finally filed to officially commence civil forfeiture procedures against those domains (thanks to Terry Hart who noticed this). To understand what's going on here, I'll again point you to Hart's explanation of the difference between seizure and forfeiture. Basically, seizure is simply the first step in a forfeiture process (a process, that we've noted is regularly abused by law enforcement). It doesn't appear the owners of these sites have been charged with anything yet at all. It's just that, effectively, the sites themselves are being charged with being used in the commission of a crime.

There's nothing particularly surprising or enlightening in the forfeiture proceeding document, other than acting as official notification if anyone wishes to claim a legal interest in the "property" in question. They would need to contest the forfeiture within 60 days of December 17th. This covers the domain names TVshack.net, Movies-Link.tv, ZML.com, Now-movies.com, ThePirateCity.org, PlanetMoviez.com, Filespump.com. As far as I know, there has been little indication that any of the original domain holders for those domains plan to contest the forfeiture process. Many have already moved on to other domains anyway.

There's nothing all that enlightening in the filing. It's pretty similar to the affidavit we saw that was used to seize the more recent domain names, with a few similar technical errors, but nothing necessarily as egregious as the errors in the more recent case. Basically, an ICE agent downloaded or streamed a few movies on some sites the MPAA pointed them to. The MPAA then said "those movies are not legally available online," and, voila, now ICE says it should get to own the domain name. It's basically ICE admitting that it's working for Hollywood now -- which explains why it announced those original seizures at Disney's headquarters (which still seems like a huge conflict of interest that no one has yet to explain). Oddly, it does not appear that anyone at ICE sought a third party, non-biased analysis of the legality of what was going on. They simply relied on the MPAA entirely.

All that said, I have to admit that I'm still at a loss as to how this is really fits under Homeland Security's mandate. Defenders of this point out that ICE has long had intellectual property issues under its purview, but those issues were supposed to be focused on preventing counterfeit products from entering the country. To extend that to internet websites seems like a huge stretch. Either way, it seems like Homeland Security must have more important things to work on.

We've been covering the ridiculous domain name seizures by Homeland Security's Immigration & Customs Enforcement (ICE) group over the last few weeks, and it seems that nearly every day we come across more info that makes the seizures look like a bigger and bigger mistake. We already noted how strange it was that a group of the seized domains were hiphop blogs and forums that were regularly supported by some of the leading stars in hiphop. Furthermore, we discussed how the specific affidavit that was used to show "probable cause" to get the warrant to seize these domains was full of technical and legal errors, was written by a guy who just graduated college, Agent Andrew Reynolds, and seemed to rely heavily on MPAA and RIAA claims.

With one specific site, dajaz1.com, we noted that the songs used by Agent Reynolds to support his claims, had actually been sent by the artists or record label representatives themselves. Dajaz1 is a blog, not a forum. Agent Reynolds called it a "linking site" which downplays and/or ignores the fact that there is a lot more on the site than just links.

I've now seen the specific email and other evidence as well, and it certainly looks like dajaz1 was asked to promote all four songs that Agent Reynolds listed by the artists or representatives of the artists. There were four songs listed in Agent Reynolds' affidavit, and in each case it appears that the songs were sent by official representatives for the specific purpose of promoting them.

1. Deuces, by Chris Brown
   
   This song was released for free by Chris Brown, as a part of a mixtape entitled Fan of a Fan -- apparently released as part of the effort to rehabilitate Brown's reputation, following the incident with Rihanna. It was only after the song was released free, and a bunch of (you guessed it) hiphop blogs and forums started promoting it, that his label, a subsidiary of Sony Music decided to release it commercially. That song was sent directly to dajaz1 from someone at Brown's record label, using an email from the record label, and it's clear from the email that the sender is urging the recipient to spread the songs.
   
   
2. Long Gone, by Nelly
   
   This song was sent directly by a VP at the record label, who was thanked in the blog post on the website, which linked to where the song could be downloaded. A simple search by Agent Reynolds of the person thanked on the blog posting (which I did) would quickly uncover the fact that the person was a VP at the record label.
   
   
3. Fall For Your Type, by Jamie Foxx
   
   This song was sent directly by a known promoter of music, who has worked with the major record labels. The email clearly suggests that it is promoting the song for the rightsholder, and directly encourages the recipients of the email to download and share the song.
   
   
4. Mechanics, by Reek Da Villian
   
   This one's interesting, since Reek Da Villian is not signed to a major record label, but is an artist whom Busta Rhymes has taken under his wing, and has been supporting and promoting for a while now. That song was apparently sent directly by Busta Rhymes -- though I did not see that email. However, considering that his work is not represented through an RIAA affiliated label, it seems odd that Reynolds would rely on an RIAA representative to later claim that this file was infringing. There's even a sort of odd admission of this in Agent Reynold's affidavit, where he notes:

   "Based on my review of public record listings, as well as conversations with RIAA representatives, I know that as of October 26th, 2010, all of the above referenced songs were determined to be "Pre-release" or not yet released for purchase to the general public, three were copyrighted, and the copyright holders did not authorize their third party distribution over the Internet by DAJAZ1.COM or any other website."

   Note that he says all were pre-release, but only three were copyrighted. Of course, this is another example of where Agent Reynolds shows his confusion about the law. All new and original creative works in the US when set in fixed format are automatically covered by copyright (technically "copyrighted" is not a verb, also). What Agent Reynolds probably meant, but got wrong, was that the Reek Da Villian song was not registered (which is not required to be covered by copyright). Still, if we assume that he believes what he wrote, how is it copyright infringement when Agent Reynolds himself admits that one of the songs is supposedly not covered by copyright? And why would the magistrate judge allow that?

So that's that. The four songs used by Agent Reynolds to support the domain name seizure of dajaz1.com, all appear to have been sent for the purpose of promoting in this manner. The Dajaz1 site was quite popular with DJs, and was regularly used by labels, artists and promoters as a way to get their music out to those DJs. It does not appear that Reynolds checked into any of this. Instead, he simply asked Carlos Linares, the VP of Anti-Piracy Legal Affairs for the RIAA, who claimed that all four songs represented "pirated songs" that were "unauthorized copies of rights holder's works," even though there are questions about whether or not he actually knew that for a fact, or even had the right to speak for some of the artists/songs in question.

On top of that, if you dig into the dajaz1 website, you quickly see that it is not at all focused on just offering up as much as possible to download. In multiple cases, the blogger notes that he will not post links to too many tracks from an album, suggesting that the site is not at all focused on getting as much infringing material up as possible, as implied in the affidavit. If that was the goal, why would it specifically refuse to post links to more than just a few songs?

Separately, the person I spoke with from dajaz1 claims that, contrary to Agent Reynolds' assertion that the site had signed up for a Valueclick advertising account, no such account was actually set up. He claims he's willing to state that under oath. Agent Reynolds' claims that the account was set up using an email address that was associated with the site. I'm not sure who's right in this instance, but the whole thing does seem questionable.

The further you dig into this, the deeper you get into just how ridiculous the music industry works these days -- with various subsidiaries and independent promoters and DJs and mixtapes, and all sorts of stuff that the labels very specifically support with one hand, while pretending to be above all that with the other. There are more details that I'm still researching, but some of it suggests that the last thing the major record labels want is for this to go to court, because it'll expose all sorts of things that the labels are doing that they probably don't want exposed.

Either way, even if we go with Occam's Razor and assume that these four cases are examples of the left hand (lawyers) not knowing what the right hand (promotions/marketing) was doing, it highlights why it's a total mistake (and probably a violation of the law) for Homeland Security to have simply seized these domains without an adversarial hearing -- or any contact with the sites in question themselves. Some of our commenters have insisted that all of these sites were "obviously criminally infringing," but the evidence suggests an extremely different story. And it's that sort of thing which is why we're supposed to have due process in the US before we shut stuff down or seize things.

Contrary to what some believe, copyright infringement is rarely a "black and white" case -- which is why we have trials to determine whether or not something is actually infringing. This is even more true in cases of criminal copyright infringement, which has a much higher bar to prove. So it's beyond baffling that Homeland Security and the magistrate judge who approved these seizures felt that it was simply okay to seize them prior to any adversarial hearing, where much of these details might have come out.

There was a lot of attention paid last week to Homeland Security's ICE (Immigration and Customs Enforcement) decision to shut down a bunch of movie file sharing sites. There were lots of questions about the action. We focused on the incredibly troubling fact that the whole thing appeared to be coordinated by Disney, a private corporation. Others, quite reasonably questioned how this is a Homeland Security (or ICE) issue at all. But, lost in much of the discussion was another important point. Beyond just raiding the operators of many of these sites, Homeland Security also seized the domains of the sites, though it's not at all clear under what legal authority they did so, and there was no due process involved at all:

The report did not cite under what law the domain names were seized. As far as I know there is no federal law that allows the seizure of domain names. That of course is the troubling part. Although I have no love for sites that allow the distribution of protected works for free, when the federal government starts making up their own remedies for violation of laws, its a problem. Moreover all that happened here was a claim by the government of improper conduct by the site. There does not appear to been a hearing where any of the domain owners got notice or what you would call due process, which is an opportunity to defend themselves prior to the domain seizure

This reminds many folks of the still ongoing legal dispute in Kentucky over whether or not the governor there can just seize the domains of certain gambling-related websites.

TorrentFreak has an anonymously-sourced (so, take that for what it's worth...) story, suggesting that ICANN was involved in the domain name seizure of these websites, using technicalities in how those sites were registered to take back the domains and hand them over to the US government.

As TorrentFreak notes, this seems to open a huge Pandora's box of potential problems, in terms of what the US government and Homeland Security (at the behest of Disney) might seize next, without any due process. What about some more well-known sites, like The Pirate Bay's domain or MegaUpload? According to the (again, anonymously sourced...) report on TorrentFreak, US officials looked into seizing both of those as well, but realized doing so would likely create other diplomatic and PR-related issues:

Shockingly, TorrentFreak was informed that wheels were also set in motion to seize The Pirate Bay domain. But for reasons that remain unclear that didn't come to pass. Our source believes that the US authorities would've had to contact the Swedish authorities on the matter first, but that since there is already an unfinished criminal process against the site, the time was not considered right. There is an implication, however, that patience won't last forever and may run out after the founders' upcoming court appeal.

Another site in the cross hairs appears to be MegaUpload. Although a domain seizure was suggested, it now seems that another route has been taken, at least for now. We have also been informed by other sources that further sites are being watched although it proved impossible to discover their names.

Given the anonymous sourcing, it's worth taking the reports with a grain of salt, though I wouldn't be surprised to find out that the possibility of seizing the domains was at least explored. If I had to guess, the possibility of a PR nightmare was probably what kept those plans on the drawing board. It was easy to step in and seize the relatively little known domains that they did. In fact, very few of the stories focused on the seizure of the domains themselves. If it had been a major site, much more attention and legal scrutiny would have been quickly applied to the question of what legal authority does Homeland Security have to seize domains.

However, now that the dust is settling on the Disney-directed bust, it does seem like an important question for Homeland Security officials to answer. On what basis can they seize domains and what role did ICANN play in those seizures?

The EFF and the ACLU has filed yet another lawsuit against the government, highlighting another scary abuse of power that feels straight out of a police state, rather than the free society we supposedly live in. Specifically, the FBI and other law enforcement officials raided the offices of two different activist organizations and seized all of their computers. There are two issues here that are important. First, if the FBI was concerned about the computers being used in commission of a crime, they easily could have followed the same policies used to get records off of computers at libraries (part of the issue is that these organizations offer public access computers to folks visiting their offices). The second issue is that both organizations act as publishers, and federal law makes it clear that the government can't just seize computers of publishers except in extremely narrow circumstances. So, in either circumstance, the Feds should not have seized the computers.