Five Questions For Homeland Security Concerning Its Online Censorship Campaign
from the please-answer... dept
As we discussed earlier, last week Homeland Security seized a bunch of domain names under a rather questionable mandate, claiming they were helping stop copyright infringement. Not surprisingly, ICE (Immigration & Customs Enforcement) boss John Morton — who has a history of making statements that make little sense to support such seizures, again took to the press to make some statements that made little sense in support of these takedowns:
“American business is under assault from counterfeiters and pirates every day, seven days a week,” Mr. Morton said. “Criminals are stealing American ideas and products and distributing them over the Internet.”
Now, this statement has all sorts of problems, and it’s scary that a government official — and one with the ability to outright seize domain names, would make so many false claims in a single quote. First of all, the evidence suggests that American business is not, in fact, “under assault” from counterfeiters and pirates. In fact, we’ve detailed a whole series of studies that suggest counterfeiting is not nearly as big a problem as the industry makes it out to be. In fact, studies have repeatedly shown that counterfeits are rarely even substitute products, as many buyers aren’t being “fooled” at all, but are using the products as a way to build up to the real thing. There are a few areas where counterfeiting is serious — such as with faked drugs — but, even then, the “risk” is often overblown, as big pharma companies pretend that mere generics are also “counterfeits,” when they’re really just cheaper competition.
Of course, even more insidious is Morton’s regular mixing of “counterfeiting” and “copyright infringement” — which are two extremely different things. In his statement, however, he seems to rely on whatever is “worst” for what he’s talking about. Counterfeit products seem like a bigger problem than straight copyright infringement, so he puts that first as saying “counterfeiters” are a problem. But, of course, the websites seized have nothing to do with counterfeits, so he switches and pretends he’s talking about copyright, saying that “criminals are stealing American ideas and products and distributing them over the Internet.” Except you can’t “steal an idea.” It’s simply not possible. Nothing is missing. You can copy an idea — but an idea is not copyrightable — only an expression is. You would think that someone representing the US government, seizing domain names over copyright infringement would know that you can’t copyright an idea.
So, given all of this, I have the following questions for Mr. Morton, anyone else at Homeland Security or in the Obama Administration, or those who support these domain seizures:
- Under what legal mandate is a group that’s supposed to be focused on Immigration and Customs getting involved in taking down websites? What does a website have to do with either immigration or customs?
- Since the original seizures were announced at Disney, is it common practice for Homeland Security and/or ICE to focus on using their guns and power of raids and seizures in efforts that are designed to help specific companies?
- Since at least some of the websites taken down were search engines that hosted no infringing material, how does Homeland Security/ICE make sure that it is not seizing domain names incorrectly (as it appears to have done in this case)?
- Since we thought the US believed in due process, how does seizing domain names, prior to any adversarial trial, fit with the concept of innocent until proven guilty? And, yes, I’m well aware of the right to seize property as part of an investigation, but when dealing with websites, we are talking about a form of speech that has a much higher burden before it can be stopped — so I’m curious for the government mandate on seizing domain names prior to a trial?
- John Morton has made numerous claims of “harm” from these websites, but has not shown any evidence (publicly) to support those claims. Considering that the GAO and OECD’s own reports question whether or not there is any such harm, can Morton show us which reports he relied on in proving “harm” before getting a court order to seize those domains? One would hope that the evidence of “harm” would come from more than a few companies, who haven’t adapted to modern technology, merely claiming so. Hopefully Morton or others can show us the evidence.
I figure if we’re going to allow Immigrations and Customs officials to suddenly start censoring the web, they should at least be able to answer those questions.