Homeland Security Presents 'Evidence' For Domain Seizures; Proves It Knows Little About The Internet – Or The Law
from the holy-crap dept
Earlier this week, we noted how the owners of the various hiphop blogs and Torrent-Finder, the torrent search engine, that were seized by Homeland Security’s Immigration and Customs Enforcement (ICE) group still hadn’t been provided the details on why their domains were seized. However, that’s no longer the case. A partial affidavit and the seizure warrant for those sites has been released, and it highlights how ridiculously clueless Homeland Security is on this issue (you can read the whole thing at the bottom of this post). What’s troubling isn’t just that the folks who made the decision to seize these domain names don’t seem to know what they’re talking about, but that they seem to have relied almost exclusively on the MPAA for their (lack of) knowledge on the subject at hand.
It looks like the four blog/forum sites (RapGodFathers, OnSmash, Dajaz1 and RMX4U) and Torrent-Finder were all lumped together into a single warrant and affidavit. The affidavit was written by a Special Agent with ICE, named Andrew Reynolds, who indicates in the affidavit that he only recently graduated from college (he notes that he’s only been on the job for one year, but before that he was a “student trainee with the group”). Much of the affidavit relies heavily on the MPAA. This fits with what ICE assistant deputy director Erik Barnett said soon after the seizures, admitting that they basically just took what sites Hollywood said were a problem and seized them.
In this case, Mr. Reynolds repeats the debunked stats the MPAA has given out concerning “losses” to Hollywood, including the claim of “domino effects” of piracy — a claim that has been debunked so many times it’s getting stale. The “domino” effects are really all about double, triple and quadruple counting the same dollars — and, perhaps more importantly, they only look at the domino effect (they usually call it a “ripple effect”) in one direction, ignoring the fact that money not spent on movies still gets spent elsewhere (potentially boosting those other industries). That doesn’t mean that it’s okay to not pay for movies — but it means that claiming some massive economic “harm” here is misleading at best. Even the GAO — from the same government Agent Reynolds works for — has debunked the MPAA’s stats, in part because the MPAA refused to explain how it came up with those numbers.
Most of the reasoning behind seizing the blogs is left out of the released document, but the entire section on Torrent-Finder is there, and the level of confusion by Mr. Reynolds is worrisome. First of all, he calls it a “linking” and a “bit torrent website.” Earlier in the affidavit, these terms are defined loosely — without any indication of the unsettled nature of the legal question concerning whether or not simply linking to potentially infringing content is, itself, infringing. Instead, it’s simply assumed that linking is not just infringement, but potentially criminal infringement. That’s scary. And wrong.
Meanwhile, a “bit torrent website” is defined is a “website through which illegal copies of movies and television shows are shared and transferred.” The problem here, of course, is that Torrent-Finder is not, in fact, a “bit torrent website.” It hosts no tracker. It hosts no infringing content. It’s a search engine. That distinction is entirely ignored. In fact, Agent Reynolds appears to blame Torrent-Finder for anything it finds as a search engine. Anyone at any search engine (or who understands how the internet works) should be horrified by this. It’s like saying that Google is liable for everything and anything that people can find by doing a search on Google. Think about that for a second.
From there, it gets even more ridiculous. As part of Agent Reynold’s argument as to why Torrent-Finder is liable he points to a series of posts by the Torrent-Finder Admin in the site’s forums. Specifically, he names the following:
I was able to view several posts by the user “Torrent Finder,” including “Top 10 Most Pirated Movies on BitTorrent,” “Piracy in the Music Industry,” “Piracy Can Boost Book Sales Tremendously,” “The First Episode of ‘The Walking Dead’ Leaks to BitTorrent,” and “Piracy domain siezure bill gains support.”
Agent Reynolds helpfully provides some of these “posts” in the exhibit. And therein we discover a serious problem. The exhibit shows a page from TorrentFreak.com, the popular blog (who we link to quite often) doing its weekly research report — and not Torrent-Finder. In fact, if you do searches on those “posts” that Agent Reynolds claims are by Torrent-Finder, you quickly discover that a few are blog posts on TorrentFreak, one is a post from ZeroPaid and the last one is a story at CNET’s News.com by Declan McCullough.
In other words, the “support” that Agent Reynolds provides for why Torrent-Finder’s domain should be seized is that he claims that Torrent-Finder’s admin linked directly to infringing material. But that’s not true. Instead, the admin was simply pointing to a bunch of different news stories. Even worse, some of those news stories highlight why the claims of the MPAA, which Agent Reynolds relies upon, are simply made up — such as TorrentFreak’s story about comic artist Steve Lieber (which was actually based on a Techdirt story about how Steve Lieber embraced the so-called “pirates” and ended up making a lot more money — we later interviewed Steve about his experiences). The CNET article is all about the COICA law — which is about the legality of seizures like this one. How is that evidence of probable cause?
Even going beyond the fact that Agent Reynolds can’t seem to figure out that a search engine is different than a torrent tracker or a torrent hosting site, he also seems to think that linking to blog posts like the ones we write here is probable cause for criminal behavior. Holy crap! That’s just downright scary.
The entirety of the evidence against Torrent Finder appears to be that because you could do a search that takes you to another site and because the site’s admin linked to some blog posts that discuss — but do not encourage — the state of file sharing, that there is probable cause of criminal behavior and your domain can and should be seized without any adversarial trial.
Agent Reynolds’ cluelessness in the matter is compounded by the fact that it appears the only folks outside of ICE that he spoke to about what he was doing were at the MPAA itself — which is hardly an unbiased party. It would be like investigating whether or not an upstart bank was committing fraud, by only talking to a large banking competitor. Who would think that’s appropriate? Apparently Agent Reynolds and his bosses at ICE.
Equally troubling is that magistrate judge Margaret Nagle signed off on the warrants (literally, with a rubber stamp) without questioning any of this, from the look of things. Nowhere is there any discussion on how the seizure of domain names has nothing to do with the actual servers. Nowhere is there any discussion about first amendment issues in seizing domain names. Nowhere is there any discussion about prior restraint. Nowhere is there any discussion about the difference between a search engine and a torrent tracker. Nowhere is there any discussion about the difference between an infringing file and a torrent. Nowhere is there any discussion about the difference between a link to a news blog post about current events and encouraging people to download infringing content.
I thought the whole thing was ridiculous before. But now that I’ve read the affidavit — at least the part about Torrent Finder — it’s become clear that this is a colossal screwup on the part of Homeland Security, ICE and the US government, based on a freshly minted ICE agent who doesn’t seem to understand the technology, being lead around by the nose by MPAA staff with an agenda.