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Senator Wyden Asks WTF Is Up With Homeland Security Domain Seizures

Copyright

from the good-for-him dept

Thu, Feb 3rd 2011 10:03am -

We’ve been talking a lot about Senator Ron Wyden lately, as he appears to be one of the few folks left in Washington DC who seem to actually care about overreaching efforts by law enforcement — especially in the area of copyright. We’ve talked about his efforts to block COICA, question ACTA and require more oversight on government spying. He’s also not been shy about standing up for what he believes in, even when corporate interests start pressuring him, such as his eloquent response to companies who urged him to support censorship via COICA.

And, now, he’s come out expressing serious concern about the recent domain name seizures done by Homeland Security’s Immigration and Customs Enforcement (ICE) group. In a letter sent to Attorney General Eric Holder and ICE director John Morton (embedded below), Senator Wyden raises numerous questions, and it’s clear that he thinks ICE has gone way beyond what is reasonable and legal. Many of the points in his letter seem to come directly from issues we’ve raised here on Techdirt — including (specifically) the fact that all of the music used to seize the dajaz1.com domain were sent by music industry or artist representatives. He also seems quite concerned about who is driving these seizures, and if it’s just companies trying to “create competitive advantages in the marketplace.”

The letter highlights that we already have a process in the DMCA that lets copyright holders target and remove infringing content, and do so in a way “without impinging on legitimate speech that the website may also facilitate.” He also is clearly concerned about the lack of due process and the fact that these seizures do “not appear to give targeted websites an opportunity to defend themselves before sanctions are imposed.” He also notes that there’s still a “contentious legal debate about when a website may be held liable for infringing activities by its users” — a point that ICE continues to seem to think is settled law, when it is anything but. In fact, he notes: “I worry that domain name seizures could function as a means for end-running the normal legal process in order to target websites that may prevail in full court.” Finally, he points out that the whole thing is “alarmingly unprecedented in breadth of its potential reach.”

From there, he lists out a series of questions that he wants Holder and Morton to answer:

  1. How does ICE and DoJ measure the effectiveness of Operation In our Sites and domain seizures more broadly — how does the government measure the benefits and costs of seizing domain names?

  2. Of the nearly 100 domain names seized by the Obama Administration over the last 9 months, how many prosecutions were initiated, how many indictments obtained, and how were the operators of these domain names provided due process?

  3. What is the process for selecting a domain name for seizure and, specifically, what criteria are used?
    1. Does the Administration make any distinction between domain names that are operated overseas and those that are operated in the U.S.?

    2. Does the Administration consider whether a domain name operated overseas is in compliance with the domestic law from which the domain name is operated?

    3. What standard does the Administration use to ensure that domains are not seized that also facilitate legitimate speech?

    4. What standards does ICE use to ensure that it does not seize the domain names of websites the legal status of which could be subject to legitimate debate in a U.S. court of law; how does ICE ensure that seizures target on the true “bad actors?”
  4. Does the Administration believe that hyperlinks to domain names that offer downloadable infringing content represent a distribution of infringing content, or do they represent speech?

  5. Does the Administration believe that websites that facilitate discussion about where to find infringing content on the Internet represents speech or the distribution of infringed content? What if the discussion on these websites includes hyperlinks to websites that offer downloadable, infringing content?

  6. What standard does DoJ expect foreign countries to use when determining whether to seize a domain name controlled in the U.S. for copyright infringement?

  7. Did DoJ and ICE take into account the legality of Rojadirecta.org before it seized its domain name? If so, did DoJ and ICE consult with the Department of State or the United States Trade Representative before seizing this site in order to consider how doing so is consistent with U.S. foreign policy and commercial objectives?

  8. In an affidavit written by Special Agent Andrew Reynolds, he uses his ability to download four specific songs on the domain name dajaz1.com as justification for seizure of this domain name. According to press accounts, the songs in question were legally provided to the operator of the domain name for the purpose of distribution. Please explain the Administration’s justification for continued seizure of this domain name and its rationale for not providing this domain name operator, and others, due process.

  9. Can you please provide to me a list of all the domain names seized by the Obama Administration since January of 2009 and provide the basis for their seizure?

  10. Do ICE and DoJ keep a record of who meets with federal law enforcement about particular domain names? If not, would you consider keeping such a record and making it publicly available, to ensure transparency in government and that Operation in our Sites is not used to create competitive advantages in the marketplace?

He basically seems to hit on all of the key points, so it’ll be interesting to see how Holder and Morton reply, but given their existing responses in various speeches, it’s not hard to predict that they’ll sidestep most of these questions, and go with something along the lines of “infringement bad! danger danger!” Either way, kudos (again) to Senator Wyden for being one of the few politicians left who really does appear to care about free speech and due process.

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Comments on “Senator Wyden Asks WTF Is Up With Homeland Security Domain Seizures”

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148 Comments
TheStupidOne says:

Wyden for President?

I would be very interested in seeing him run for the presidency. If the issues he is standing up for right now are what he feels most strongly about then I would love to see him shape national policy more directly. Unfortunately he is a member of the Democratic Party so he is unlikely to challenge Obama in the next election, but I hope for a president that actually cares about Americans, their rights, and preventing our government from breaking the law.

Anonymous Coward says:

Re:

I would like to know the answers to the questions he’s asking. As a law abiding American citizen, I’d like to know where I stand, legally speaking. I always thought I could count on due process, and I’d wager that not even you could discount some of the questionable impetus for several of these seizures.

Those are the ones that worry me most.

AC says:

Re:

“This looks like garden variety grandstanding to me. Holder and Morton don’t have to answer questions whenever a Senator feels like firing off a letter. Give me a break. If you didn’t agree with this guy, you’d be all over him for grandstanding.”

Can’t argue the points of his letter so you go after the guy who wrote it? Are you not the one usually acusing Mike of FUD? Pot meet kettle….

average_joe says:

Response to: average_joe on Feb 3rd, 2011 @ 10:49am

Just asking questions isn’t grandstanding. These are questquestions that should have been answered by someone before any of these seizures happened, so it should be easy to answer them.

Grandstanding is when a politician plays to the public to garner favorable attention. He’s writing a letter to two people who have no duty to answer him, asking all sorts of questions that aren’t going to be answered, and then providing a copy of the letter to the press. This is plain vanilla grandstanding.

There’s nothing wrong with it, and his questions are good ones, but it’s grandstanding nonetheless.

Anonymous Coward says:

Re:

The points of the letter aren’t really relevant. Most of them are habeas corpus type questions that should be asked by defence lawyers in a court of law, not by a grandstanding politician looking to score the youth vote.

His questions are also slanted and attempt to create FUD all by themselves, like:

Does the Administration believe that websites that facilitate discussion about where to find infringing content on the Internet represents speech or the distribution of infringed content? What if the discussion on these websites includes hyperlinks to websites that offer downloadable, infringing content?

The question is slanted because it attempts to claim the websites were about “discussion about” when really there were just facilitating access to the infringing content. They weren’t linking to sites that offer downloadable content, they were linking to the downloadable content. Often, they were actually embedding the videos directly into their sites.

More importantly, from a legal standpoint, people working together in a conspiracy to commit an illegal act are all guilty of the act, even if they don’t actually “pull the trigger”. Conspiracy doesn’t even require that the right hand and the left hand know each others direct motives, as long as they are working together to further the conspiracy.

The senator knows this, but chooses to ignore it.

Actually, he is pretty selective in his application of the law. I love this little gem from his past:

On November 10, 2005, Wyden was one of five Senate Democrats who joined 44 Republicans in voting “yes” on Amendment no. 2516, brought to the floor by Republican senator Lindsey Graham, which ruled that enemy combatants did not have the right to Habeas Corpus. (from wikipedia)

Seems that the senator isn’t all strong on habeas corpus after all. Sort of shows the level of grandstanding he is willing to go to.

Anonymous Coward says:

Hey, Anonymous...

Answer this one then:

“On November 10, 2005, Wyden was one of five Senate Democrats who joined 44 Republicans in voting “yes” on Amendment no. 2516, brought to the floor by Republican senator Lindsey Graham, which ruled that enemy combatants did not have the right to Habeas Corpus.”

Seems he doesn’t have much respect for due process, does he?

Bruce Ediger (profile) says:

Hey, Anonymous...

The law enforcment officer’s job *is* to answer questions: “is so-and-so breaking a law?”, “which law is so-and-so breaking?”, “do I have enough sound reasons to file for a warrant?”, “am I upholding the constitution as my oath requires?”

“I’m just doing my job” is a very slight re-phrasing of “I was only following orders.” The Greatest Generation provided us with an answer if that is a defense, and the answer is “No”.

Although I’m with you about the grandstanding politicians, it’s not The Public’s job to support unconstitutional or illegal actions.

Gabriel Tane (profile) says:

Response to: average_joe on Feb 3rd, 2011 @ 10:49am

Joe, are you having an off day? Usually, you’re really on top of things and have a solid stance on whatever you’re on about… But did you just say “his questions are good ones”?

“This looks like garden variety grandstanding to me. Holder and Morton don’t have to answer questions whenever a Senator feels like firing off a letter. Give me a break. If you didn’t agree with this guy, you’d be all over him for grandstanding.”

Doesn’t sound like you agree too much from what you said just a few posts ago.

And from your other posts, you’re sounding more and more like Anonymous in his arguments… I’m worried about you man… at this rate, your responses will soon be reduced to “LOL… U R so dumb!” I’m really not trying to bust your balls on this one, but either you’re off today or someone stole your password to log in.

average_joe says:

Re:

I would like to know the answers to the questions he’s asking. As a law abiding American citizen, I’d like to know where I stand, legally speaking. I always thought I could count on due process, and I’d wager that not even you could discount some of the questionable impetus for several of these seizures.

Those are the ones that worry me most.

They are good questions. We’ll get the answers in a court of law, I imagine, or not at all. We won’t get Holder’s and Morton’s response to this letter because I doubt they’ll be writing one.

Bruce Ediger (profile) says:

Two things ....

TAM: an abbreviation for “The Anti-Mike”, a pseudonymous commentor on TechDirt a few months back.

http://www.techdirt.com/profile.php?u=tam

Looks like he/she/it/them last posted in February of 2010.

TAM is widely believe to have just abandonded that “profile” and now just posts anonymously. I personally believe this is true, too.

Nick (profile) says:

Ideology Run Amuck

Wyden just needs to STFU already. Piracy and counterfeiting are costing the global economy trillions of dollars and millions of jobs. There isn’t any other way to combat it except to shut the sites down. A store in NYC that sold stolen watches or counterfeited handbags would be shut down immediately. Same concept here. Wyden needs to not be blinded by his far left ideology as to discount common sense. And this is coming from a liberal.

average_joe says:

Re:

Actually, he is pretty selective in his application of the law. I love this little gem from his past:

On November 10, 2005, Wyden was one of five Senate Democrats who joined 44 Republicans in voting “yes” on Amendment no. 2516, brought to the floor by Republican senator Lindsey Graham, which ruled that enemy combatants did not have the right to Habeas Corpus. (from wikipedia)

Seems that the senator isn’t all strong on habeas corpus after all. Sort of shows the level of grandstanding he is willing to go to.

Let’s write a letter to him demanding an explanation and then give that letter to the press.

Anonymous Coward says:

Re:

I don’t like the sound of ‘not at all’. I hold the belief that it would behoove them to answer these questions sooner rather than later, because the lack of such is eroding my faith in the justice system and government in general.

I should be able to understand the law, in some sense anyway, in order to follow it, but these cases…they have a bogus air to me, a serious overstepping glossed over by supposed authority fed information only by vested interests.

I thought we all had to follow the same set of rules. I thought executing law was more objective, more about erring on the side of caution than this seems to appear.

It makes me a fearful citizen.

Gwiz (profile) says:

Re:

The question is slanted because it attempts to claim the websites were about “discussion about” when really there were just facilitating access to the infringing content.

But, if there was any discussion what so ever on the site than it should be treated as speech and protected as such.

They weren’t linking to sites that offer downloadable content, they were linking to the downloadable content. Often, they were actually embedding the videos directly into their sites.

Only linking and embedding…but were they hosting the material?

More importantly, from a legal standpoint, people working together in a conspiracy to commit an illegal act are all guilty of the act, even if they don’t actually “pull the trigger”. Conspiracy doesn’t even require that the right hand and the left hand know each others direct motives, as long as they are working together to further the conspiracy.

Let’s broaden that thought a little bit. By your argument, the record label representatives who provided the songs to dajaz1.com are also part of the conspiracy.

Anonymous Coward says:

Re:

Let’s broaden that thought a little bit. By your argument, the record label representatives who provided the songs to dajaz1.com are also part of the conspiracy.

You are correct, they may be. It may also be that individuals working inside the record companies are operating on their own and making choices that the record company as a whole does not approve of. They may be playing loose and fast with company assets to buy themselves credibility or to do what the artist wants to do, even if it is against their contract.

We don’t know. We do know that the rights holders are saying that material wasn’t released that way. There is enough probably cause to move forward, especially when the same story seems to play out with multiple sites, multiple artists, and multiple labels.

It also never excuses the mash ups and other re-uses of copyright material approved by nobody and turned into parts of the sites in question.

Senator Wyden perhaps needs to explain his own actions first and start working from there, he isn’t exactly a poster child for legal rights.

The Infamous Joe (profile) says:

Re:

It may also be that individuals working inside the record companies are operating on their own and making choices that the record company as a whole does not approve of. They may be playing loose and fast with company assets to buy themselves credibility or to do what the artist wants to do, even if it is against their contract.

Wouldn’t that make it innocent infringement, a civil offense, which the government has no business enforcing?

Anonymous Coward says:

Re:

Actually, he is pretty selective in his application of the law. I love this little gem from his past:

On November 10, 2005, Wyden was one of five Senate Democrats who joined 44 Republicans in voting “yes” on Amendment no. 2516, brought to the floor by Republican senator Lindsey Graham, which ruled that enemy combatants did not have the right to Habeas Corpus. (from wikipedia)

Seems that the senator isn’t all strong on habeas corpus after all. Sort of shows the level of grandstanding he is willing to go to.

If you want rights and protections under the law you must fight wars in accordance with international law. That means fighting in uniform and not using women/children as human shields.

You must abide by international warfare laws to be protected by them.

jilocasin (profile) says:

If they ever _get_ to court.

You wrote;

“The points of the letter aren’t really relevant. Most of them are habeas corpus type questions that should be asked by defence[sic] lawyers in a court of law…”

Unfortunately, since there don’t appear to be any prosecutions based on these seizures, there isn’t a trial where a defense attorney _could_ ask these kind of questions. It’s part of the whole ‘without due process’ thing that everyone who isn’t a corporate shill is getting so upset about.

Luckily for us the Senator has brought up exactly that point with his question number two:

“2. Of the nearly 100 domain names seized by the Obama Administration over the last 9 months, how many prosecutions were initiated, how many indictments obtained, and how were the operators of these domain names provided due process? “

As for your;

“…from a legal standpoint, people working together in a conspiracy to commit an illegal act are all guilty of the act…”

Unfortunately for you and the RIAA/MPAA etc. the ‘acts’ that these domains are accused of ‘committing’ are necessarily illegal. A conspiracy of people to commit a _legal_ act still isn’t illegal, even if the people working together know _exactly_ what the other parties are doing.

Oh wait, the Senator has addressed that one as well;

‘3.4: What standards does ICE use to ensure that it does not seize the domain names of websites the legal status of which could be subject to legitimate debate in a U.S. court of law; how does ICE ensure that seizures target on the true “bad actors?” ‘

Looks like a group of corporate interests has enlisted the might of the U.S. government to mete out ‘justice’. Where ‘justice’ means whatever they believe it means (interference with a business model, competitors, people we just don’t like today).

jilocasin (profile) says:

If they ever _get_ to court. (Correction)

Oopps, when I wrote:

“Unfortunately for you and the RIAA/MPAA etc. the ‘acts’ that these domains are accused of ‘committing’ are necessarily illegal.”

I meant to write:

“Unfortunately for you and the RIAA/MPAA etc. the ‘acts’ that these domains are accused of ‘committing’ aren’t necessarily illegal.”

Anonymous Coward says:

Damn

Wyden has a good record of doing good things for the benefit of his fellow man, rather than enriching himself. For example, before he was a senator, Wyden was a lawyer working in Oregon’s legal aid system. He spent many years working for people who did not have the resources to afford a regular attorney. Legal aid is not a lucrative or easy area of law by any stretch of the imagination, and a lawyer of Wyden’s caliber would have had many opportunities to earn a much higher salary for much less work in a different area of law.

average_joe says:

Response to: average_joe on Feb 3rd, 2011 @ 10:49am

Actually, they do have a duty to answer. They answer to not only the president but to Congress as well. Are you really that much of a moron?

No need for the name calling. They have no duty to answer this letter. That’s not how it works with the Cabinet. When Congress wants answers, they have hearings.

Anonymous Coward says:

Response to: average_joe on Feb 3rd, 2011 @ 10:49am

Grandstanding would be him asking those same questions while speaking into a camera at CNN or Fox. This letter is so low-key that there isn’t any mention of it in any of Oregon’s local papers. Wyden isn’t the type to grandstand, anyway, since he’s aware that he lacks public presence and charisma.

r (profile) says:

strap-on ((arguably) adult content)

What is bothering me is we’ve apparently got mass copyright holders strapped on to our government policing their interests. That’s just great. On our fucking coin no less. And at the same time trying to redefine the definition of rape to save coin (sorry, horror of the day). Human ass leaches.

It’s your stuff – you fix it.

pussy bitches.

super-bowl is coming. yeah. can you hit these real quick? yeah. thanks. no problem. == large problem

keep media off the carrier wire leases! hands off! suck it and compete! common carrier – nothing more! mobile & cable too! useless fucking programming heap-o-shite they all are – $100. pfft you just wait til the old man passes.

Yeah, how dare Senators ask questions – the nerve

Angry enough? I could try harder but then I might not even read it.

Mike Masnick (profile) says:

Ideology Run Amuck

Wyden just needs to STFU already.

Yes, free speech really is overrated.

Piracy and counterfeiting are costing the global economy trillions of dollars and millions of jobs.

[citation needed] Various independent studies from the GAO, OECD and various academic researchers have all found that these claims are not matched in reality (especially the “trillions of dollars”.

If you have evidence that refutes all of those, please present it.

There isn’t any other way to combat it except to shut the sites down.

A few points on this:

1. Yes, there are ways to combat counterfeiting. We’ve pointed to numerous companies who realized that by “counterfeiting themselves” they were often able to capture both the “counterfeit” market and the higher prestige market that those who buy the counterfeits couldn’t afford anyway.

2. The issue here is not counterfeiting, but copyright infringement, which you should know are two totally different situations.

3. Even if we grant your premise that the sites should be shut down — and Wyden makes clear he is fine with actual bad actors being shut down eventually — do you not agree that such sites still deserve basic due process and an adversarial hearing before they are unilaterally declared guilty?

A store in NYC that sold stolen watches or counterfeited handbags would be shut down immediately.

Again, I would suggest learning the difference between a store selling counterfeits and a site that links you to content that may or may not be infringing on copyright.

Same concept here. Wyden needs to not be blinded by his far left ideology as to discount common sense

I did not know that being concerned about free speech, due process and international sovereignty were “far left ideology.” Where did you come up with that?

Anonymous Coward says:

Re:

Wouldn’t that make it innocent infringement, a civil offense, which the government has no business enforcing?

It would depend on how and why it was done. If it was done for profit (between the site owners and the “rogue employee”) by making the infringing site more popular, charging more for ads, etc, then it is a commercial issue.

If it happened over state lines, that would make it “interstate transport for…”, also criminal and Federal.

You would also have to look at the sites as a whole. When I looked at the caches of the sites Mike specifically pointed to in Google’s system, it was clear that much of these sites were about download, about sharing, and so on. The vast majority of the “blog” were nothing more than embedded clips, many of them seemed to be mash ups and such made by third parties unlikely to have rights on the music. Without knowing the details, it is hard to tell. But it is clear that the sites were operating commercially and profiting from material that even on the surface appears to be infringing. Without some sort of solid backup, it will be incredibly hard for them to prove otherwise.

Further, and this is key: If they themselves were placing the video files “off site” to create deniablity, then they are in serious trouble. That would show intent, which is a dead end.

Thankfully,with Senator Wyden on their side, they don’t have to worry about Habeas Corpus. Clearly that isn’t in his scope of operations.

Anonymous Coward says:

If they ever _get_ to court. (Correction)

“Unfortunately for you and the RIAA/MPAA etc. the ‘acts’ that these domains are accused of ‘committing’ aren’t necessarily illegal.”

From a legal standpoint, the standard for a warrant (including the seizure of evidence or even putting an enterprise under government control) isn’t “beyond a reasonable doubt” but rather “reasonable suspicion”. On the surface, without any digging, you have the copyright holders complaining, and you have sites that have the offending material displayed on their pages. It is reasonable for the courts to see that as likely to succeed on it’s merits in court.

On the surface, looking at the websites, you can see a large number of violations, and you can see the commercial aspect of the sites. 1 + 1 = 2, at least for the purposes of the initial warrants issued.

“It’s only embedded” would appear to be an affirmative defense here. Even then, admitting that they knew it was illegal but they made it part of their website anyway appears to fulfill the “distribution” part of the laws.

Again, Mike may not like it, but with all the FUD removed, the reality is pretty clear, and a matter for the courts.

Anonymous Coward says:

Hey, Anonymous...

except Enemy Combatants don’t have a right to Habeas Corupus under the Gen. Convention either. A US citizen (and none enemy combatant) does, a person fighting for another cause vs. US military does do not, why do you think this proves he doesnt have respect for due process?

An Enemey Combatant is detained and covered under Gen. Convention and / or Military Code not Civil… Different rules for different situations… and has DIFFERENT DUE PROCESS

Try again with mis-direction, it was cute…

Joe (profile) says:

If they ever _get_ to court. (Correction)

From a legal standpoint, the standard for a warrant (including the seizure of evidence or even putting an enterprise under government control) isn’t “beyond a reasonable doubt” but rather “reasonable suspicion”.

Ummm, no. The standard for a warrant is “probable cause.” BIG difference.

You might want to read the 4th Amendment:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

btr1701 (profile) says:

Hey, Anonymous...

> What is creaking is the US legal system, which
> is being undermined by a disrepectful public
> and grandstanding politicians.

Yes, heaven forfend that the people in a democratic republic question their government, or that the officials in charge of law enforcement oversight actually, you know, oversee it.

You’re absolutely right. We should all just shut up and accept whatever they do like good little sheep and yield to our betters.

btr1701 (profile) says:

Re:

> Holder, the Attorney General, answers directly
> to the President.

The president has less power over the AG than any other cabinet official. The president could order the secretary of the Interior to drop some policy initiative or abandon department program with no problem, but if the president tries to interfere with the workings of the DoJ– pressures the AG to pursue or drop a case– then all sorts of legal issues arise.

harbingerofdoom (profile) says:

Re:

They are good questions. We’ll get the answers in a court of law, I imagine, or not at all. We won’t get Holder’s and Morton’s response to this letter because I doubt they’ll be writing one.

unfortunately, i think you are spot on with the idea that they wont be writing any response.

as to your point of him grandstanding, there are a lot better things he could grandstand about (keeping in mind that the point of grandstanding is simply to make yourself look good without actually sticking your neck out), and grandstanding politicians rarely break with the partisan fold as he is clearly doing here. you may not agree, like or approve of what he is doing… but based on timing what he is saying and for all intents and purposes who he is calling out, it does not appear to be any sort of political grandstanding of the sort seen over the last 25-30 years.

harbingerofdoom (profile) says:

Response to: average_joe on Feb 3rd, 2011 @ 10:49am

and when only one congressional member is currently standing up to ask such questions, they write letters. the letters are published publicly in order to shine a light on the situation and start the discourse that involves people contacting their representatives in order to find why why they are or are not also asking such questions with the ultimate hope of getting enough politicians to convene such a hearing.

you dont get to the point of a congressional hearing because a single member of congress wants one… this is just one way to get things moving in that direction.

as for any duty to answer this letter, while none of us here might like it, joe is correct. the only duty they have is to serve the president. their duty to serve the public is actually a corollary to the idea that the president is supposed to serve the public and as a result any political appointees thus also serve the public.

(and yes, they do take an oath to uphold the constitution, im talking about the realities of the situation, not how things would be in an ideal world).

Rekrul says:

Re:

Holder, the Attorney General, answers directly to the President. Morton, Director of ICE, answers to Napolitano, Secretary of DHS, who in turns answers directly to the President. That’s my understanding anyway.

So if they ultimately only answer to the president and the president has already shown a willingness to allow the government to blatantly violate the law (warrantless wiretaps, etc), then who will hold them accountable?

Or should we just allow the government to do whatever it wants just because it says it can?

Rekrul says:

“I worry that domain name seizures could function as a means for end-running the normal legal process in order to target websites that may prevail in full court.”

This quote needs a little fixing;

“It’s worrying that domain name seizures are being used as a means for end-running the normal legal process in order to target websites that may prevail in full court.”

There’s that’s better…

jilocasin (profile) says:

If they ever _get_ to court. (Correction)

So how many of these seizures have resulted in a trial, or even charges? Last I checked, I haven’t seen any.

Why have they seized domain names and not gone after the servers or the people behind them?

Why have they waited, sometimes for months, before providing the owners of proper notice? It’s not like they didn’t know how to contact them.

These extra legal seizures aren’t anything like warrants. Warrants are issued to seize a person or evidence of wrongdoing for trial. In the case of a publisher, the government faces a very high standard before they can seize anything. Make copies to preserve evidence yes, seize it, no. These websites are publishers, therefore under current jurisprudence ICE should be facing a higher standard in order to seize anything related to them, not no standard.

Looking at the complete picture we have government agents, acting at the behest of commercial interests interfering with publishers by seizing their domain names. The digital equivalent of jamming their television or radio station signals, or perhaps locking up all of their newspaper vending machines. There is no notification, there is no due process, and apparently no intent to ever litigate. Since those effected can (and do) switch to a different radio frequency or move their papers to a different street corner (move their domains) there is obviously no intention to actually stop them.

The obvious conclusion? Government agents acting extra legally to disrupt a commercial competitor.

You wrote:

“Again, Mike may not like it, but with all the FUD removed, the reality is pretty clear, and a matter for the courts.”

If it truly was a matter for the courts, then people wouldn’t be so upset about it. If they really wanted to take the owners of these sites to court then they would have served the site owners with charges. If the servers were in the country they would have petitioned the court to preserve any evidence on their servers. This is not a case where the complainant would be irrevocably harmed without shutting them down immediately. Whatever they’ve been accused of doing, they’ve been doing for a while. It’s not like they are selling counterfeit medicine or faulty equipment that would endanger people’s lives if it wasn’t impounded before trial.

When it comes down to it, these web sites are publishing information that the copyright owners don’t want them to. Whether or not what they are doing is illegal is for a court to decide.

Unfortunately, like the recent Spanish domain that was seized, they are afraid that the courts wouldn’t agree that what these sites are doing is in fact against the law. If they were confident, if it’s such a obvious case of these websites acting illegally, then they would have taken the site owners to court. The DMCA that they fought so hard to get passed establishes a _legal_ method to deal with web sites that are accused of hosting / distributing copy written material illegally.

It isn’t FUD to watch government agents act like paid corporate goons. It’s just stating the obvious.

Anonymous Coward says:

If they ever _get_ to court. (Correction)

Do you understand how long it takes to go from serving a warrant to actual charges being laid? A few months is nothing in a process like that. You seem to be expecting some sort of fast track process for these particular cases. Sorry, it doesn’t happen like that. They get processed like everyone else.

Check back in 8-12 months. There might be news.

CensoredBloggah (profile) says:

“Do ICE and DoJ keep a record of who meets with federal law enforcement about particular domain names? If not, would you consider keeping such a record and making it publicly available, to ensure transparency in government and that Operation in our Sites is not used to create competitive advantages in the marketplace?”

This is the RIAA and the Label’s biggest nightmare.

Last I checked one is supposed to have a right to confront their accusers. The fact that it is sealed and the sites are unable to find out who even complained about them is disturbing. Do the sites not have a right to know which record label or label executive filed a complaint against them?

velox says:

Response to: average_joe on Feb 3rd, 2011 @ 10:49am

Regardless of what you believe their “duty” is, It is extremely unlikely that the letter will go unanswered. Years ago, I was a government employee, and I know exactly the sort of organizational attention a letter from a member of the House, let alone a Senator, can generate.

AJ, you can’t possibly be so naive to think that members of the executive branch don’t know who ultimately is responsible for their budget?

Members of Congress are treated with the greatest of respect (publicly, of course).
A better question would be — Will the Senator get the kinds of answers he wants?
That is much more doubtful.

Pleasant sounding evasion is the most likely response.

velox says:

Re:

“…militant freetard…”

Apparently all things that include the word free are now highly suspect — including “freedom”

“61 year old politician; no way he came up with all that on his own.”

Are you the same incompetent, (unable to even do simple arithmetic on a data table) who was in here last month claiming that the “vast majority of TD readers” are “under 30″… with “generally low incomes”.

As if no one over 30 gives a shit about highly dubious assaults on our constitutional foundations under the guise of protecting IP.

Guess again chump. You’ve sorely misjudged a large segment of us here.

Anonymous Coward says:

Hey, Anonymous...

Actually they came up with the term “illegal enemy combatant”, in an attempt to say they were not military (and thus skirting the war prisoner treaty), while at the same time keeping them as combatants so they could treat them as soldiers (and keep them in military custody).

The only way out was through the US legal system, by filing a habeas corpus demand. But Wyden and his friends tried their damndest to block that too, putting them in never never land.

Illegal Enemy Combatant is another one of Shrub Bush’s legacy concepts.

velox says:

Ideology Run Amuck

“Wyden just needs to STFU already … Wyden needs to not be blinded by his far left ideology …”

Wyden’s letter calls attention to the fact that there is reasonable doubt that these seizures are legal.
Insisting that the government must be subject to the rule of law is not a far-left ideology.
Even the financially biased tripe from Terry Hart can’t support that argument.

Keith Rodgers (profile) says:

Nazi's in America

I too hear this from many of my own friends, They are not involved in illegal downloading they are just sitting on the sidelines watching.
The comments are… Federal Abuse of POWER. If they start taking down Websites for “one thing” and that goes off without a “hitch” then the next step with be to “Edit” something “Else.”
I am reminded of this each time I login to my FACEBOOK Account. It say’s, “What’s on your Mind?” Every time I see that I think of the “Pre-Thought Crimes Bill.” Not that I am out to do harm but it seems like for some reason everyone in the USA today is sitting in a Interrogation Room with a Bright Light in their FACE as if WE are the SUBJECT of the NEXT ATTACK inside our Borders.
There was a 60 Min’s video on YouTube on Using FMRI Machines to READ a persons MIND. Not only Read it but know in advance that he/she would say Yes/No.
The Future Applications would be to use this is COURT. Sure a person could “Remain Silent” You would not have to TALK they just have to ask a question and watch the Brain and your N.A.I.L.E.D. If you have not caught on yet this is called the “Minority Report in REAL LIFE. AND… They actually have Businesses that Offer these Brain Scans services (For a Fee)..

I recently also saw that there was an application to SNITCH on someone using your Cellular Phone, so YES!! There’s an APP for that Too. Daily this country is turning into what GERMANY WAS in the 1930’s and 40’s. Have you ever read the School Project called the “Third Wave?” It was why, or how could the People of Germany turn in their own “Family and Friends?” Very Interesting Project. Google has a Video on it.
We have gone from a Nation from where we used to borrow Milk, Sugar and Eggs from our neighbors to where we don’t even trust them, nor would we use anything from an Open container.
We can live in a Neighborhood for 12 years and not know the family 2 doors down or their children.
We used to seal a deal with a handshake, Now it takes a Lawyer and 50 page contracts. I can hear Lee Greenwood singing “I’m Proud to be an American” but the WORDS are so empty.

Sorry for RANTING…
If what happened in Egypt ever happened HERE in the USA, You would not hear OUR Elected Officials say, LET THEM HAVE THEIR SAY, GIVE THEM THEIR VOICE. (MARTIAL LAW WOULD BE DECLARED, DHS would be in FULL FORCE, NATO TROOPS would be here because Our Military also will not Fire on OUR Citizens, That is why NATO Troops are under the Control of FEMA of haven’t you caught that? The Posse Comitatus and Insurrection Acts were already changed in 2007 for MARTIAL LAW.
Yes, Support your country 100% and your government WHEN it deserves it.
Mark Twain I too hear this from many of my own friends, They are not involved in illegal downloading they are just sitting on the sidelines watching.
The comments are… Abuse of POWER. If they start taking down Websites for “one thing” and that goes off without a “hitch” then the next step with be to “Edit” something “Else.”
I am reminded of this each time I login to my FACEBOOK Account. It say’s, “What’s on your Mind?” Every time I see that I think of the “Pre-Thought Crimes Bill

btr1701 (profile) says:

Re:

> More importantly, from a legal standpoint, people
> working together in a conspiracy to commit an illegal
> act are all guilty of the act, even if they don’t
> actually “pull the trigger”.

In order for there to be an actual conspiracy (as opposed to the fantasy kind you’re talking about), the conspirators have to actually know each other and affirmatively enter into an agreement to commit a criminal act.

In the case of one website linking to another, the person doing the linking hasn’t even met the people running the other site, let alone affirmatively agreed enter into criminal activity with them.

Bottom line: conspiracy = fail

Hugh S. Myers (profile) says:

Incremental Action

I wrote Senator Wyden even though he is not mine— I live in orange county north, i.e. Idaho. Here is what I said:

I believe that your recent letter to John Morton and Eric Holder represents a “still small voice” of resistance in a dangerous slide to corporatism. When former President Eisenhower warned against the military-industrial complex no one listened— and perhaps rightfully so since the attack on our rights comes not from Northrup and Boeing, but from Hollywood and Walt Disney. It is still an attack designed to eliminate precious rights that all citizens need preserved even if they don’t clearly under stand them. I salute your efforts and would like to know how I might help in your efforts.

I don’t particularly expect a response and have no idea of what I could do, other than to voice my support. Still as the events of the last month or so have shown, great change comes from critical mass and critical mass is acquired incrementally…

average_joe says:

Re:


In order for there to be an actual conspiracy (as opposed to the fantasy kind you’re talking about), the conspirators have to actually know each other and affirmatively enter into an agreement to commit a criminal act.

In the case of one website linking to another, the person doing the linking hasn’t even met the people running the other site, let alone affirmatively agreed enter into criminal activity with them.

Bottom line: conspiracy = fail

We don’t know what facts the investigations turned up, so your claim that there can’t possibly be a conspiracy is pure conjecture.

Joe Dirt says:

The Letter

The letter SOUNDS good. But let’s not forget that every member of congress is responsible for giving these powers to them in the first place. If any Senator or Representative is truely in support of Freedom, then they need to effect pro-freedom change in government within their first term in office. if they can’t then they need to step down.

This is more likely a way for the Senator to try and convince the masses that he is on our side, and tries to set himself up in a good position to run for president.

I’m not convinced.

I will not believe him.

I will not forgive.

I will not forget.

Expect us.

Lucas says:

Don't stop there!

I just got through sending letters (fine, emails) to my Senators and Representative with a link to the letter and a request that they help Mr. Wyden with his endeavor. I encourage you all to do the same. It goes pretty quickly, and can have quite an effect.
Website for finding your Senator: http://www.senate.gov/general/contact_information/senators_cfm.cfm
Link to the letter that Senator Wyden sent.
http://www.docstoc.com/docs/document-preview.aspx?doc_id=70790188

G.C. says:

Ideology Run Amuck

Hi there Mr. or Ms. Shill! Here’s the one thing your side has failed to provide:

Objective proof. Where is it?

And it’s kinda hard to claim a copy is theft. The original owner was not deprived of anything that he/she didn’t already have. Simply put, we are not responsible for trying to support your business model. I’m just saddened by the fact that you shills and industry leaders you represent won’t stop pushing until you all are in your graves. The best my generation can do is to fight as hard as we can to make sure you all don’t enact any lasting damage.

Anonymous Coward says:

Re:

If there is no due process then there is no way to confront your accuser. No defense attorneys will be involved.

Conspiracy is a bullshit charge which is used to prosecute those that the People can’t hammer with solid case.

These are strong arm tactics used by an out of control bureaucracy which has allowed mission creep to morph its original mandate into something completely different. The DHS needs to be shut down and dismantled.

Just some guy on the interwebs says:

Re:

Sure but sometimes someone has to ask the questions. There are two courts, the legal one and the public opinion one. In this matter it is very important to get this POV out so the debate isn’t one sided. As someone said on here, people don’t read and vote stupidly. Grandstanding it is but sometimes grandstanding is required.

Tidewater (profile) says:

The Senator needs to expand his scope

The DHS is for keeping the nation secure from terrorism, created in response to 9/11 otherwise it wouldn’t even exist. Because we already have a multitude of federal police agencies for all contingencies. Is the nation so secure that they have extra time and resources on their hands? It must be if chasing pirates is all they have to do. Do we really need a DHS at all, or could we have simply added a piracy division to the F.B.I.? And do we not already have a Customs Dpeartment? Homeland security? How about they get the flow of drugs into this country stopped and halt the illegal weapons trade on the streets before they worry about people downloading MP3s?

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