Congressional Reps Question Feds Over Botched Domain Seizures
from the will-we-get-answers dept
The government’s admission that it had (once again) mistakenly seized and censored a website for over a year when it dropped its case against Rojadirecta/Puerto80 has reminded everyone that Dajaz1 was not an isolate case. It was a part of a wider program where DHS (via ICE) and the DOJ systematically believed whatever the RIAA and MPAA were telling them, leading to the blatant censorship of a variety of websites, without proper due process. Thankfully, some in Congress are paying attention. Bipartisan Congressional Reps. Zoe Lofgren, Jason Chaffetz and Jared Polis have teamed up to send a letter raising a number of questions about Operation in Our Sites, to both Attorney General Holder and Homeland Security Secretary Napolitano.
The letter doesn’t even mention the Rojadirecta case, but focuses on what happened with Dajaz1, pointing out their concern with the program, and how it appears to violate free speech rights, ignore due process and destroy legitimate businesses. The letter raises the fact that Dajaz1 is not an isolated case. As we’ve pointed out in the past, we’re aware of at least a few other domains that were seized, and whose owners had challenged the seizures. And yet, well over a year later, there appeared to be no evidence of either a return of those domains or a forfeiture process started. Given how the feds treated Dajaz1, with secret extensions, preventing Dajaz1 from representing itself in court, we’ve wondered how many other domains the DOJ and ICE had incorrectly and illegally seized — and which they were now keeping in that kind of holding pattern. It’s good to see that this letter directly asks about that issue:
Other complaints have been raised by websites seized under “In Our Sites” that bear similarities to the Dajaz1 case. These complaints center around unnecessary delays in advancing and resolving cases, difficulty in obtaining documents from the government that are fundamental to the underlying cases (such as affidavits), and difficulty even maintaining contact with the U.S. Attorneys prosecuting the cases. The effect of these problems is to severely limit the ability of website owners to challenge the legality and merits of the domain name seizures.
The letter goes on to ask a series of important questions for both DHS and DOJ, especially regarding the utter failure of both departments in the Dajaz1 situation.
- What is the process for determining which sites to target? Who is involved in that process? What specific steps do DOJ and ICE take to ensure that affidavits and other material are thoroughly reviewed for accuracy prior to seizing a domain?
- To what extent are government agents required to evaluate whether the potentially infringing material to which target sites link — or which they host themselves — are non-infringing fair uses, impliedly licensed, and/or de minimis uses?
- Do government agents consider whether a site complies with the DMCA safe harbors? If so, how does this affect the determination to target a site?
- How many sites have attempted to retrieve their domains, via any process, judicial or informal, and what is the status of those cases?
- Have you made any changes to your domain seizure policies or their implementation as a result of the issues arising from the Dajaz1 seizure or any other seizure? If so, what were those changes?
- What specific steps has the DOJ and ICE taken to ensure that domain name seizure cases proceed without unnecessary delays, and that website owners seeking to restore their domain names have swift access to the officials and documents necessary to resolve their cases?
- How many more seizures do you anticipate occurring in the next six months and year?
It seems to me that questions four and five are the key ones here, which means I fully expect DOJ and ICE to be especially non-responsive in whatever answers they provide.