Full Homeland Security Affidavit To Seize Domains Riddled With Technical & Legal Errors
from the this-just-gets-worse-and-worse dept
Another day and even more evidence that Homeland Security’s decision to have its Immigration & Customs Enforcement (ICE) group seize a bunch of domain names without any warning or adversarial hearing was a colossal screw up. We haven’t heard too much about the sites seized concerning trademark infringement, but there were five that were the focus of copyright infringement — including a bunch of hiphop blogs (which were regularly used by artists and record labels alike to promote their songs) and a search engine. Last week, we went through a partial affidavit from a newly minted ICE agent named Andrew Reynolds, which showed numerous technological and legal errors in explaining why the domain of the search engine, Torrent Finder, was seized. Yesterday, we wrote about how some of the “evidence” used against the blogs included songs sent by the labels for promotional purposes.
A few different folks have since sent over the full affidavit which you can see below. So now we can see the “details” of the evidence put together by Agent Reynolds that was (literally) rubber stamped by magistrate judge Margaret Nagle, and it’s looking worse and worse for Homeland Security. Basically, all of the sites in question had some forums and in some of those forums, some users posted links to other sites, which hosted some content. In other words, under these conditions, an awful lot of domain names on the internet can be seized by ICE.
Just for fun, I went through most of the files found in the document and searched for them all in Google. In every case, Google popped up plenty of links to sites hosting that content. Now, it’s entirely possible that a copyright holder could make the argument that some of these sites reached the level of “inducing” copyright infringement, but, as both Agent Reynolds and Judge Nagle should know, inducement of copyright infringement is a very dynamic area of law, which has multiple factors needed to establish whether or not inducement occurs — most of which Agent Reynolds did not bother to present. Furthermore, inducement is supposed to be determined in a court of law following an adversarial trial — not because some recent college grad ICE agent asked a movie or recording industry exec their opinion on the matter.
At no point, does it appear that any effort was made to establish that seizing an entire domain based on a small fraction of what occurred on the site does not violate the First Amendment. This is going to present a pretty serious problem for Homeland Security, because there’s a fair amount of legal precedence saying that you need to take into account the First Amendment implications before seizing forms of expression.
Of course, one response to this, that we saw in the comments, was a claim that since ICE only seized the “domain name,” speech wasn’t prevented, since the speech could still live on on the server itself. This explanation fails for two reasons. First, domain names themselves can be considered speech as has been highlighted in a few different cases. Second, and more importantly, Agent Reynolds’ own affidavit makes it clear that the seizures of domain names was because of the content found on those domains (though, he repeatedly, mistakenly seems to think that content on other servers is the responsibility of those domains). If Reynolds was only seizing the domain names to avoid stifling speech of the content on the rest of the servers, his entire argument fails. In his affidavit, he clearly states that he wants to seize the domain names because the domain names are “property used, or intended to be used to commit or facilitate criminal copyright infringement.” But, if we’re really going to argue that the domain names and the content on the servers are separate, then this argument makes no sense. The domain names themselves are not being used to commit or to facilitate criminal copyright infringement. Only some of the content on the servers.
Furthermore, Agent Reynolds’ explanation for why the domains need to be seized rather than allowing an adversarial hearing to take place are laughable at best:
Neither a restraining order nor an injunction is sufficient to guarantee the availability of the SUBJECT DOMAIN NAMES for forfeiture. By seizing the SUBJECT DOMAIN NAMES and redirecting them to another website, the Government will prevent third parties from acquiring the names and using them to commit additional crimes. Furthermore, seizure of the SUBJECT DOMAIN NAMES will prevent third parties from continuing to access the five websites listed above.
In other words, in yet another moment of technological ignorance on the part of Agent Reynolds and the judge in question, they seem to really believe that seizing the domain names prevents people from accessing the content in question. Of course, that was quickly proven false by the fact that most of these sites reappeared within hours on different domain names. But it also highlights how Reynolds really did mean to shut down the entire website (he was just somewhat clueless in how to actually do so) with zero regard (as required by the law) for the First Amendment implications.
On top of that, his claims of why the domains need to be seized, rather than allowing a court to issue an injunction or a restraining order, don’t make sense either. Did he really think that with an injunction or a restraining order and an actual case going to court that “third parties” would magically acquire the domain names in question? And, even if they acquired the domain names, what would that have to do with the content on the servers? Is Agent Reynolds really basing his claim that these domains needed to be seized prior to an adversarial hearing based on a series of highly improbable events: (1) that a lawsuit would be filed against these domain holders, (2) that the court would issue an injunction and (3) that, for some reason, it would also not instruct the domain holders not to get rid of the domains in question, and (4) that not having happened, that the domain holders would simply decide to sell off or to give away those domains, and (5) that those domains would then fall into other hands, and (6) that those others might possibly use it to commit “additional crimes”? Really? The first two steps in the chain could be reasonable, given certain conditions, but the following four steps are beyond improbable.
Is Homeland Security really basing its already First Amendment-questionable seizure of domain names, for sites the industry used to promote its own works with no notice or adversarial hearing, with questionable and error-riddled evidence on a series of six hypotheticals, many of which are highly improbable?