Congressional Investigations Into Dajaz1.com Censorship Begin
from the let's-see-what-they-find-out dept
If the Justice Department hoped that it could seize the domain of a hip hop blog for over a year with no due process and then return it quietly and pretend nothing had happened, it may be in for a bit of a surprise. About an hour and a half after we broke the story, it just so happened that Rep. Zoe Lofgren was in a Judiciary Committee hearing with Attorney General Eric Holder, providing her an opportunity to ask him about the situation. You can see the full five minute exchange below:
It looks like he may be getting other reminders as well. Senator Ron Wyden told Wired that he intends to start asking significant questions about Operation In Our Sites, and it doesn’t sound like he’s going to give up easily:
?I expect the administration will be receiving a series of FOIA [Freedom of Information Act] requests from our office and that the senator will have very pointed questions with regard to how the administration chooses to target the sites that it does,? said Jennifer Hoelzer, a Wyden spokeswoman. She said the senator was ?particularly interested in learning how many secret dockets exist for copyright cases. There doesn?t seem to be an obvious precedent or explanation for that.?
I’ll certainly be interested to see what they turn up.
Filed Under: copyright, dhs, doj, domain seizures, eric holder, free speech, linking, pipa, protect ip, ron wyden, sopa, zoe lofgren
Companies: dajaz1
Comments on “Congressional Investigations Into Dajaz1.com Censorship Begin”
“To the extent that someone acted inappropriately in the department, I’ll make sure they’re held accountable”
Hopefully the next story will say,
“Head of DOJ fires employees …”
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(but, then again, this is probably wishful thinking).
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Please. You know the “follow up” is going to be “Due to reasons that cannot be released publicly, we’ve found that all employees acted in good faith and will not be reprimanded.”
The cowards won’t even have the guts to provide credible evidence.
/Infringement aside, due process MUST be followed or we all lose.
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Then Holder’s daughter won’t be too happy…
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Do you honestly believe (a) that statement wasn’t just a ploy for sympathy or distraction and (b) that his daughters would actually follow up? I may be a cynic, but that whole bit about his daughters just seemed fake to me.
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Of course it was fake, hence the smiley face at the top of my comment.
Re: Re: Re:3 Re:
Not only was it fake it seemed like a ploy to diminish the importance of this issue. “Only kids care about hip hop”
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“Well I’m not to concerned with taking away these peoples business, accusing them of being criminals, and using the collective power of the government to keep the whole thing secret but my daughters like the hip-hops so Ill look into it.”
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Or they’ll try and sack Newt Gingrich, even though he’s not a part of the DoJ or ICE.
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The following release says several of them will be promoted and cited for going “above and beyond” in their activities to ensure that the administration of justice will continue to be of the high standards it has always been and always will be.
Five years from now the statement will be busted as a myth by Mythbusters, immediately followed by the arrest of the hosts, production company, production staff, promotional stuff, the pizza delivery person and the next door neighbours of the base of the show and, finally, the idiot the blew up that cement truck all those years ago and disturbed a few endangered nesting crows.
Oh, crows aren’t endangered? Whoops, scratch that!
Trials are expected to begin in 2115. Until then the alleged offenders will be held in custody in an unknown location.
Our country is once more saved.
Signed. J. Edgar Hoover, Guardian Ghost of America.
I don’t see a congressional investigation. I see one member asking a question, and pretty much the subject dies. When they set up an actual panel to look into this, you can call it an investigation. For the moment, it’s an idle question, and not much more – mostly aimed at putting the AG on the defensive.
Sorry Mike, not much here.
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>>I see one member asking a question
If you read the article there are two members of congress, not one. And it appears that they are asking a lot more than one question. But then I guess that actually reading the article cuts into the amount of trolling time you can put in during a day.
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It’s really just one question, and discussion of, and appears mostly to keep the AG off balance to to distract him a bit. There didn’t seem to be any serious desire to follow this up (unless his daughters really hound him).
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Sometimes it takes a pebble to start an avalanche, what happened here was truly horrific for a free society. The AG won’t be able to bury this and pretend like they’re not the RIAA’s puppet.
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I don’t see a congressional investigation. I see one member asking a question, and pretty much the subject dies. When they set up an actual panel to look into this, you can call it an investigation. For the moment, it’s an idle question, and not much more – mostly aimed at putting the AG on the defensive.
Sorry Mike, not much here.
Agreed. This is just typical grandstanding by Lofgren and Wyden.
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Ooh. I’d been keeping that “grandstanding” square on my Techdirt trolling bingo card in hopes that someone would bring out this evidence-bereft claim anytime a congressperson actually seemed to stand up for justice.
All I need is a “broadbrush” or a “freetard” and I’ll have bingo!
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LOL!
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You also need Kool – aid, you need something to put on the brush.
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That Kool-aid broadbrush sure makes a nice toy. :p
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This is just typical grandstanding by Lofgren and Wyden.
Maybe. Maybe not. We’ll see.
What is your take on the government being all super-duper double secret (seriously, so secret that the opposing lawyer can’t even see the rulings involving his client, WTF?) on the Dajaz1 case.
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What is your take on the government being all super-duper double secret (seriously, so secret that the opposing lawyer can’t even see the rulings involving his client, WTF?) on the Dajaz1 case.
I think that’s normal for an ongoing criminal investigation, and I don’t think it’s a Due Process violation. But the whole dajaz1.com situation does seem like a clear First Amendment violation. I hope they sue.
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The absence of adversarial hearings or even any public/redacted court order is not a due process violation? How so?
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The original seizure was based on a showing of probable cause. A magistrate judge then issued a seizure warrant. That’s due process. The seizure statute allows for the government to petition the court ex parte for extensions. The constitutionality of seizures/forfeitures has been tested in the courts and held to not violate Due Process. In general, the government can seize and forfeit property in this manner. The problem, IMO, is that domain names aren’t just any kind of property. Seizing a domain name has the potential to block a channel of communication, and that’s where First Amendment doctrine kicks in.
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And Arcara shows you why that did not matter in the dajaz case.
Just because gov gave back the domain does not mean they were innocent.
Do you think dajaz is going to go back to business as usual like they did before the seizure? Let them try and we’ll see how that works out for them.
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Arcara justifies the ultimate forfeiture of the domain name, but not the initial seizure. The issue in Arcara was whether they could shut down the bookstore AFTER there had been a full trial on the merits.
I never said dajaz1.com was innocent. In fact, I said I had no doubt they were engaged in criminal copyright infringement.
I have no idea what dajaz1.com will do now, nor do I really care. I’m not into hip hop.
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I have no idea what dajaz1.com will do now, nor do I really care. I’m not into hip hop.
Hate to Godwin this…but:
First they came for the hip hop sites, but I didn’t care because I didn’t like hip hop.
Then they came for the online blogs and news sites, but I didn’t care because I didn’t read online blogs or news sites.
Then they came for me…
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The government decides not to prosecute cases all the time; oppressive caseload, political will, departmental focus and simple bureaucracy all enter into the equation.
Extrapolating an actual legal judgement out of such inaction is nothing but wishful thinking.
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I never said dajaz1.com was innocent. In fact, I said I had no doubt they were engaged in criminal copyright infringement.
How so?
Two points worth noting: it posted works received from legitimate sources (so, no showing of willfulness) and it had no advertising prior to the seizure (so, no commercial profiting). It also hosted no files.
So… helps us out. Where’s the criminal copyright infringement?
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There’s a difference between saying that I think they were engaged in criminal infringement and saying that I don’t doubt that they were. I’ve never even seen the site until a couple days ago, and I have no idea what used to go on there. I know that you raised some question of whether the examples listed in the affidavit were non-infringing, but I’ve read elsewhere that there was infringement on the site above and beyond the examples in the affidavit. Without knowing the details, I can’t really say either way. There was certainly probable cause to think the site was infringing when the judge signed off on the warrant. Even if the facts asserted in the affidavit turned out to not be true, that doesn’t change the fact that there appeared to be probable cause at the time. I really don’t know what to believe, Mike. I certainly don’t take your “reporting” on these things at face value, especially since you admit you’re not a journalist who follows the basic rules of journalism.
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How the fuck can you be so certain and have no doubt that they were engaged in criminal copyright infringement (your words) when you also say “Without knowing the details”. You are pronouncing them guilty without giving them the benefit of a trial.
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This is the standard playbook. IP maxlimalists and their shills and apologists have a preconceived worldview in which anyone accused of infringement probably did infringe. This is even easier when you start arguing that just about everyone is a pirate. People who link to content they don’t host are supposedly pirates. People who post content they get from official sources for the purposes of promotion are supposedly pirates. People who format shift for private purposes are pirates. People who circumvent DRM for private purposes are pirates.
Pirate used to be a term that described guys who actually produced counterfeit copies of movies and CDs and sold them for $5 in Chinatown who arguably were criminals making a profit off of someone else’s content. Now seven year old girls downloading Justin Bieber songs are dirty criminal pirates.
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Arcara justifies the ultimate forfeiture of the domain name, but not the initial seizure.
And this statement doesn’t make any sense; if Arcara justifies the forfeiture, then ipso facto, it also justifies the seizure.
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Not at all. The bookstore in Arcara could not (and in fact was not) shut down before there had been a hearing on the merits. A seizure happens ex parte and without an adversarial hearing. A forfeiture happens after there’s been a full adversarial hearing on the merits. For First Amendment purposes, the difference is critical.
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As a matter of procedure, seizure occurs before forfeiture.
How could forfeiture, which demands a higher standard, be acceptable but seizure *unacceptable* in the same case?
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When the thing being seized is presumptively protected under the First Amendment, it’s a prior restraint to seize it ex parte without adequate process.
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A domain name isn’t presumptively protected by the first amendment, a website is.
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The domain name is used to get to the website, so seizing it removes a channel of communication and invokes the First Amendment all the same.
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Nope. See below.
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A domain name is an invention of convenience, not a canvas of expression.
It does not receive first amendment protection.
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Removing a channel that people are using to access protected speech invokes the First Amendment. I’ll produce the caselaw that says that another day… Have a good one.
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If it was the only channel, I’m sure it would…
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If it was the only channel, I’m sure it would…
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Professor Lemley does a great job of explaining the Arcara argument in this brief on pages 6-9: http://www.scribd.com/doc/74968805/Puerto-80-v-United-States-Reply-Brief
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What you’re telling me is why forfeiture is acceptable. You’re not telling me why seizure *isn’t*.
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Because of the prior restraint doctrine.
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Please apply that to the dajaz seizure.
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There is presumptively protected speech on that website (moreover there is in fact protected speech there, not just presumptively protected speech). When the government seized the domain name they blocked a means of getting to that protected speech. Seizing the domain name ex parte and without a prompt adversarial hearing afterwards is a prior restraint.
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Have some caselaw for me?
Terry Hart phrased it well: “Domain name seizures are not prior restraints in any sense of the word. They aren?t made based on the content of any expression. They do not remove any expression from circulation. And they don?t bar any future expression from either the web site owner or its users.”
This tactic being used by dajaz and Techdirt was attempted by Napster and failed. “The courts will not sustain a First Amendment challenge where the defendant entraps itself in an ?all-or-nothing predicament.??
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I disagree with Terry on that point. I’d get into the caselaw with you but I have a final exam in two hours and I’m cramming at the moment.
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It wasn’t any more a first amendment violation than any of the other seizures.
Dajaz engaged in serial copyright infringement via assimilating thousands of links to illegal material. That some of the examples given by ICE were submitted by labels doesn’t change that fact and never will.
There has been no statement that Dajaz was innocent of copyright infringement by the government and there never will be.
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It wasn’t any more a first amendment violation than any of the other seizures.
And perhaps they’ve all been First Amendment violations. I don’t doubt that dajaz1.com was engaged in criminal copyright infringement. But I also don’t doubt that First Amendment protected speech was happening on that site. It’s the lack of a prompt, post-seizure adversarial hearing that I think makes the seizures constitutionally infirm. I’m all for Operation in our Sites, I just think there needs to be more process.
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“I’m all for Operation in our Sites, I just think there needs to be more process.”
That’s a dichotomy of thought. Operation in Our Sites didn’t involve any due process.
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See, this is the kind of idea I can understand. The actual illegality of the site doesn’t matter if there is protected speech on the site. It’s like using a disk formatter to get rid of a simple computer virus.
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No.
If this were the case, then bank robbers would carry political protest signs with them during their robbery and claim “the actual illegality of my bank robbing doesn’t matter because there is protected speech involved”.
That’s just silly.
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Even so, the onus is on the State to prove that those signs were used in the committal of a robbery. That’s how it’s written in the Constitution. Y’know, that legal document that makes America.
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Your statement doesn’t make any sense. Care to rephrase?
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Yes, your pathetic analogy is just silly.
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Silly as in so strong you’re unable to refute it?
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not an official statement, but I think when someone drops a case it’s usually not because they stopped caring about the crime. it’s because they don’t have any evidence that the defendant is guilty. if Dajaz was guilty the government would have prosecuted. instead they just withheld the domain as long as they could with no explanation until they didn’t think they could keep getting away with it.
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Citation please where collection links to other websites is infringement.
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MGM v Grokster made inducement a crime.
Aggregating links to infringing material is inducement.
Now go die in a fire.
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I think that’s normal for an ongoing criminal investigation, and I don’t think it’s a Due Process violation.
I think you’ve gone completely off the rails there. How can there be secret court rulings that even the attorney representing Dajaz1 cannot see or talk to the judge about? I’ll agree that in some narrow national security and espionage cases, secret rulings make some sense. But this is a copyright infringement case. There is zero chance of any physical harm to anyone, zero chance of national security secrets falling into the hands of a foreign government, and near zero chance that the defendant would flee the country.
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idle question!?
Did you hear her? The DOJ head had a congressional representative asking for someone to be fired over this shortly after the story broke. At the very least, I think Ms Lofgren has made the point that the public and their representatives are watching what the DOJ are doing. They’ll have to be a bit more careful about what they do.
Can someone please tell Wyden about this?
Specifically, why has no one answered the FOIA requests that have already surfaced?
Silly Copyright maximalists
Your wild west days of wielding copyright take downs and illegally confiscating websites via proxy with ICE are starting to come to a close. I hope you enjoyed it while it lasted, because the people are noticing now and you won’t be getting away with ridiculous expansions anymore. You free riding copyright maximalist artist exploiters you.
Just because the United States government has the authority to sell guns to Mexican drug cartels and censor websites does not necessarily mean it’s gone power-mad. Or power-incompetent.
You guys and your tin-foil hats.
My nephew used to be an insanely reckless driver. He got away with all kinds of abuses for years with no serious repercussions. One day he pushed things a bit too far, and that got him on the radar of the local constabulary. Suddenly he found that he was suspect every time he drove out of his driveway, and one time a cop actually stopped him while he was still backup out of the driveway. My nephew got the book thrown at him and is now a pedestrian.
I wonder if there is going to be an analogy with the record labels. Once they realized that they had a licence to get anything they wanted from the government they were reckless. Now the media, the press, and other tech companies have them on their radar. Big media might get SOPA passed because they got a lot of commitments before the mess went public, but after this I am guessing that they will have a lot more trouble with the next thing they ask for.
No wonder....
It just hit me. The reason Mike is so worried about SOPA and PIPA is because of the comment section here.
It’s obvious from a ton of commenters here, that TechDirt is dedicated to the theft of US property and could be shut down immediately under SOPA. All of the pro-piracy articles here are “clear” evidence that this site should be shut down immed….
Re: No wonder....
Marked as funny….keep em coming!
Politicians need to get the facts
While I believe Rep. Lofgren to be one of the few fighting the good fight in the Congress, especially by bringing attention to these issues, it would be so much more effective if she didn’t just ask questions on the basis of an article but actually contacted the affected parties so that she’s strong on the facts, not on someone’s interpretation of those facts. Her question lost its punch when she kept saying “I’m only reading from this article”. Something real is happening here and she really should addressing its substance more thoroughly…IMHO.
Re: Politicians need to get the facts
Wow, all kinds of buried assumptions there. Any particular reason you are assuming she didn’t? or do you know she didn’t?
Mike made a correlation that they were close in time, but made no assertions nor provided facts that one caused the other. Did you read somewhere else that they were related?
Re: Re: Politicians need to get the facts
Quite the contrary. Assertions of fact were made here without attribution and/or substantiation.
Frankly, I am a loss to explain why counsel for the website apparently chose not to immediately file a motion with the court for return of the site as provided in the relevant statutory provision. This would have forced the DOJ to appear before the court and explain its actions and the legal basis for such actions, including evidentiary matters.
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Frankly, I am a loss to explain why counsel for the website apparently chose not to immediately file a motion with the court for return of the site as provided in the relevant statutory provision. This would have forced the DOJ to appear before the court and explain its actions and the legal basis for such actions, including evidentiary matters.
Might have something to do with DOJ saying that if you do anything like that it will charge the counsel’s clients with criminal charges for which they’d face jailtime.
Intimidation by government is so much fun.
Re: Politicians need to get the facts
Please note that this occurred within a couple hours of the story being broken. She didn’t have a whole lot of time for investigation before speaking with Mr. Holder
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Don’t you think she should have done some investigating before bothering the Attorney General with this? I do. There was no hurry. She was just grandstanding–again.
And it worries me that the “news story” she offered to give to Holder was one of Mike’s “stories.”
Techdirt should have a big disclaimer on every “story” it publishes that Mike isn’t actually a journalist, and he does not follow even the minimum, basic, fundamental tenets of real journalism.
I’d hate for someone to hand a Techdirt “article” to the A.G. and have him mistakenly think it had been properly vetted.
Liar
My impression is that Eric Holder is lying through his teeth. I don’t believe for a minute he is not familiar with the case. He is just buying time to think of some way to justify it after the fact.
He’s also trying to act like this is maybe some one off problem, while in fact the entire “In Your Sites” operation is in violation of the 1st, 2nd and 4th amendments. And that falls squarely under his responsibility.
If anyone should be fired it’s Eric Holder.
Re: Liar
He doesn’t seem to know about anything that’s going on in his department, does he?
Re: Liar
I doubt that he knows the specifics to any detail. The AG deals with a HUGE amount of stuff on a daily basis, I would be shocked if this ever crossed the AG’s desk. I’m sure he reviewed and approved In Our Sites at a high level, but is not up on the actions of individual domains. At most he got some line item in a briefing along the lines of “In Our Sites proceeding well, some sites contesting seizure, we are taking steps towards forfeiture”.
People in the AG’s position, are insulated from these types of shenanigans, not so much for their benefit as the benefit of the people directly in charge of this.
Specifically, the person actually behind this is not advertising their actions, as the patent constitutional violations would force someone as public as the AG to act. They were hoping to slide this one by, and got caught. They’re probably shitting bricks now that the AG got asked about it.
Re: Re: Liar
I hope you’re right, but given that the whole operation has been criticized for a long time already, I find it hard to believe that he never took the time to look into it a little deeper. Besides iirc he’s been publicly quite outspoken on the issue of Intellectual “Property” rights.
In the best traditions of ICE, let’s just assume he’s guilty until he proves his innocence. 😉
Lawl. “I will look into and get back with you.” Translation “I don’t give a sh*t and I won’t get back to you.”
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More like “I will get back to you with some vacuous and inane non-answer.”
having read this article and plenty of others here and elsewhere concerning the conduct of ICE and the DOJ over domain name seizures, i was of the opinion that Attorney General Eric Holder was fully up to date and in agreement with what has happened. so, is he now trying to deny any knowledge of what has happened to the web sites that have been taken down? is he going to try to pass the buck and make himself look squeaky-clean? is he going to get some other poor schmuck to take the blame? will the truth finally have to come out that all of this was done at the behest of the entertainment industries? whose head, if anyone’s, will be put on the chopping block? things could now get interesting, especially if Wyden keeps the ball rolling!
When they stop this behavior is when I will believe something was done.Otherwise I have zero faith that anything will be done good in Washington.Washington is a cancer that needs to go thru a surgical operation to remove the corrupted tissue and leave the healthy tissue that is good and moral and not taking money.
to much big money in Washington and to many of these people do the worst things to us.Look at the new post about imprisoning US Citizens.That law maybe could be used against us in the future ??
They did make the Patriot Act and lied about that being used for terrorists only as those laws are used against common US Type Criminals.
I believe that a good chunk of those in government do not give a poop about us.They do care about getting money and keeping themselve and their Party in power but not us citizens.We do not matter to them.
…
?I expect the administration will be receiving a series of FOIA [Freedom of Information Act] requests from our office and that the senator will have very pointed questions with regard to how the administration chooses to target the sites that it does,? said Jennifer Hoelzer, a Wyden spokeswoman. She said the senator was ?particularly interested in learning how many secret dockets exist for copyright cases. There doesn?t seem to be an obvious precedent or explanation for that.?
Senator Wyden, Below is the information you asked for in your Freedom of Information Request.
The #### ###### ############ ################ a ####
####### ########## ######### and ######### ########
############## ####### ######### ########### #### is
############## ######### ######## ############# ####
###### on ############## ################ ##### ####
######### ######### the ########### ######### #####
####### ######## is ######### ########## ###########
######### ############ ####### ######### ####### ###
### with ########### ############## ########### ###
####### ######## ######### ##### as ######## #######
######### ######### ####### ######### ####### ######
####### ########## ######### ############# time.
Sincerely ICE/DOJ
How sad is it that the head of the Attorney General needs his daughters to remind him to do his job. I think his statement in this regard shows just how (un)seriously he takes this situation to be.
A pebble
I sure hope Congress does take a close look at what kind of operation the DOJ and ICE are running. Denying a defendants right to justice and due process though secret and uncooperative government is not how things should be.