ICE Reluctantly Releases A Small Number Of Heavily Redacted Domain Seizure Docs, Holds The Rest Hostage

from the but-of-course dept

Back in December of 2010, Aaron Swartz filed a Freedom of Information Act request regarding the Immigrations and Customs Enforcement (ICE) efforts to seize, without any notification or adversarial hearings, domain names which ICE claimed were facilitating copyright and/or trademark infringement. After nearly two years of back and forth (including ICE apparently losing an updated request and closing the request because of it), ICE has finally delivered 100 pages worth of heavily redacted material which are close to useless. They are also claiming that there are another 16,137 records out there, but they want him to pay over $1,000 to get the rest. They told him if he didn’t cough up the money within a few days, they would consider the request closed. Aaron, with the help of the Muckrock site (which helps people file FOIAs), is appealing this decision.

In the meantime, however, we have 100 mostly useless documents that appear to just show the warrants that US Magistrate Judge Alan Kay approved on the morning of November 23rd, 2011. Of course, these are completely redacted, so you don’t even know what domains they’re referring to. In going through the documents, the only thing of interest that I spotted was that the judge time stamped each warrant signature, and many of them are mere minutes from one another — at least raising some questions concerning how carefully the judge reviewed each individual case before granting the warrant that allowed the feds to then seize and shut down those sites. Considering that we already have two known cases — Dajaz1 and Rojadirecta — in which it later came out that the government did not have the necessary evidence, and where the feds were embarrassingly forced to hand back the domains and drop legal proceedings, it seems that a judge should be expected to at least spend some time understanding why it is he’s signing off on an order to take down speech.

Either way, it really does seem like these documents being the first 100 released was, perhaps, done on purpose, to make sure the released documents don’t actually get at what Swartz actually requested, which was:

  • Any guidelines or protocols for ICE agents about the procedures for seizing domains
  • Any communications between ICE and other government agencies with regard to the seized domains
  • Any communications between ICE and intellectual property owners requesting domains be seized or discussing seized domains
  • Any court filings requesting authorization to seize domains
  • Any internal emails mentioning the seized sites
  • Any legal memos mentioning the seized sites

Instead, he gets 100 pages of heavily redacted warrants? What a joke. And, is it that difficult to expect that a judge will take more than a minute or two to understand the issues at hand when signing off on a warrant to completely shut down a website with no adversarial hearing with the site owner?

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Comments on “ICE Reluctantly Releases A Small Number Of Heavily Redacted Domain Seizure Docs, Holds The Rest Hostage”

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53 Comments
Anonymous Coward says:

Re: Re:

“We can neither confirm or deny the existance of those documents. Any classified information cannot have its existence confirmed because of possible compromisation of foreign powers, military, information gathering, anti-child pornography, business models and generally who or what we deem necessary to protect. As a rule of thumb, anything the government does is classified and whatever we want to let people see has to be controlled through a very narrow spindoctor-haven to assure positive experience for the people requesting imnformation…”

That is more or less the reality we have been living with before the internet. FOIA is a huge step foreward on terms of assuring a transparent and more “real” democracy.

That some people are abusing the system is a problem and – on the other side – the lack of ability from some of the government bodies is what is making the transition horribly painful.
I think it is important to recognise that ICE and some other bodies have always been corrupted by a lack of oversight and too big an ego!

Baldaur Regis (profile) says:

Re: Re: Re:

Look closely at blacked out areas: each one appears to have dimensional info on it (e.g., 10X7 ????). Somewhere, there’s a GSA form whereby US agencies can order a Big Book of Redaction Areas, Black, Dimensional, Assorted. My FOIA request would be:

1: Are the redacted areas reusable or are they one-off?
2: Did they change to Redacted Areas because people were getting too high on highlighter/black Sharpie fumes?
3: Who owns the copyright on Redacted Areas?

I would love to see a headline like “FOIA request for Redacted Area information is itself redacted”

Anonymous Coward says:

this disgraceful practice should be pursued through the courts further. none of the sites seized could possibly have threatened national security, unless of course they were giving instructions on how to produce a nuclear device from a 3D printer so the only reason to not issue unredacted documents is to stop the real issuers of the take downs from being revealed and to stop the issuing judge from being held accountable for not checking the warrants he was allowing.

Machin Shin (profile) says:

Re: Re:

What is really funny though is that instructions to build a nuclear device are easily available online. It actually is not even that terribly hard to build. We are talking about something that was invented in late 1930s early 1940s. The difficulty is getting materials.

More to the point though. These sites that were taken down were not some great nation security threat. You would also have a very very hard time convincing me they had a valid excuse for redacting the domain names they took.

Anonymous Coward says:

Hard to believe that a guy facing serious jail time would be stupid enough not to keep a lower profile. Whether he’s right or wrong, it makes no sense for a defendant under federal indictment to raise his profile in an antagonistic way like this. Federal judges and US Attorneys operate under broad-ranging discretion. Why on earth would Swartz put him self out there like this when the same FOIA could be tendered by his lawyer or someone not facing felony charges?

Mike Masnick (profile) says:

Re: Re:

Hard to believe that a guy facing serious jail time would be stupid enough not to keep a lower profile. Whether he’s right or wrong, it makes no sense for a defendant under federal indictment to raise his profile in an antagonistic way like this. Federal judges and US Attorneys operate under broad-ranging discretion. Why on earth would Swartz put him self out there like this when the same FOIA could be tendered by his lawyer or someone not facing felony charges?

Fwiw, Aaron filed the FOIA prior to being indicted.

That would be obvious if you cared about facts and not just slamming him. But, you don’t.

Besides, do you really think that someone under indictment in an unrelated case loses their ability to file FOIAs? Really?

Anonymous Coward says:

And, is it that difficult to expect that a judge will take more than a minute or two to understand the issues at hand when signing off on a warrant to completely shut down a website with no adversarial hearing with the site owner?

I don’t know if you are slow or just refuse to acknowledge that a seizure is simply the arrest of property. Do you expect there to be a full blown adversarial hearing before an accused embezzler can be arrested? Do you see any problem with that?

Rikuo (profile) says:

Re: Re: Re: Re:

If Bernie Madoff had moved his assets or transferred control to a third party, law enforcement would not have had control of assets that had directly been used or had been the result of the profit of, financial crimes. i.e., if the police seize a car that was used in a bank robbery or had been bought with the proceeds of a bank robbery, that’s preventing the alleged criminal from using it to commit a crime and/or benefiting from it.

What did seizing the domain names accomplish? They didn’t arrest the guys behind dajaz1.com et al. If the guys behind dajaz1.com et al were in fact hard-core online criminals, it would have slowed them down for at most a day or two, while they switched domains.
Also don’t forget, THERE WAS NO EVIDENCE PRESENTED in the case of dajaz1.com. The operators of that site had it taken down purely on the allegation of a third party. The police aren’t supposed to do that. There is supposed to be some sort of initial investigation. Let us not forget that the “investigation” into dajaz1.com had the ICE agent download 4 files, 3 of which were deliberately given to dajaz1 by the record labels, while the fourth was for an artist not signed to those labels. And yet, that ICE agent used that false evidence as a basis to shut down the site and silence speech.

Mike Masnick (profile) says:

Re: Re: Re: Re:

So when they moved on Bernie Madoff, they should have held a hearing before seizing his assets? Why, to afford him the opportunity to hide them or to transfer control to a third party before the hearing? That not the way the law works, nor does it make sense.

I see. So you think that the domain owners were going to “hide” their domains away?

Anonymous Coward says:

Re: Re:

Alright, I’m going to a judge to accuse you of embezzlement. If they don’t take away all of your property (real and imagined) then they aren’t doing their jobs.

I’ll bet that once they find out it’s bogus you’ll be perfectly happy with the way they seized your assets, and perfectly happy to give them up again when someone else gets the idea to prove the same point.

Anonymous Coward says:

Re: Re: Re: Re:

Well, Doug Dickmehard (that’s you…why in the hell are we giving each other names anyway? Can’t we just call each other fucking cowards?) shouldn’t say that all that has to happen is that someone is accused then.

Do you expect there to be a full blown adversarial hearing before an accused embezzler can be arrested?

Basically you’re saying that if I accuse you then you should get all of your assets taken. You didn’t mention that the accusation had merit, was pursued by law enforcement, or that there had to be ANY evidence. Just that someone had to be accused.

I bet I could find as much evidence against you as they have against a lot of those redacted sites (note, that would be very little to none).

Anonymous Coward says:

Not sure why eveyone’s talking about national security.

The exemptions claimed were as follows:

Privacy Act Exemption (j)(2) – completely inapplicable and unprofessional. Privacy Act Exemptions don’t work that way, and this is purely a FOIA request.

FOIA Exemption 6 – Personal privacy. Generally noncontroversial, though subject to accusations of overclaiming.

FOIA Exemption 7(C) – Personal privacy wrt information collected for law enforcement purposes. Stronger protection than exemption 6, due to the potentially heightened sensitivity of law enforcement records.

FOIA Exemption 7(E) – Risk of circumvention. If they disclose how they enforce laws, the precise methods of investigation, etc., a reasonably clever criminal will be able to circumvent the laws/enforcement.

7(E) is in a general sense legitimate here, but also potentially subject to huge overclaiming.

The FOIA is a (relatively) straightforward law with a significant background of court precedent, and DOJ had published the DOJ interpretations and business practices for processing FOIA requests in an indexed publicly available form.

Also, technically, the warrants are responsive documents, so it may be sleazy, but it’s a valid response.

That being said, the processing here as a whole was very poor form.

Lack of response is a sad fact of FOIA processing, but it still looks bad, especially considering the total lack of response in the face of several follow-up inquiries.

The office claimed several times that they would provide a fee estimate if fees were to exceed a certain threshold, but no notification was sent. Nevertheless, they put in effort far exceeding the fee agreement and notification threshold. Collection of fees is ostensibly to offset the cost of FOIA, hence the ability to close a request for lack of a fee agreement. Incurring assessible fees without a requisite fee agreement is fiscally irresponsible, as well as a waste of valuable processing time.

Not familiar with DHS FOIA policies, but 10 calendar days is an extremely short time frame, even if the letter is received immediately. The time frame had already expired by the time the response made its way through the mail.

Finally, the redacted documents don’t seem to pass muster. Each redacted section is clearly marked, but no exemption s claimed. Each redacted portion should be accompanied by the applicable exemptions claimed for that specific portion. Especially when there is such a marked disparity between Exemptions 6 and 7(E).

This reflects poorly on the FOIA program as a whole. Even looked upon with a very forgiving lens, there’s a lot of basic stuff they could have done, and much of it is stuff they should have done.

Anonymous Coward says:

Actually, I think that the FOIA doesn’t trump the idea that these are currently cases either in litigation or pending appeals and other legal actions. I am not surprised that they are not disclosing information which may be used in a court of law in these cases.

Transparency doesn’t mean “drop your pants and let everyone see all the time”. You guys argue about due process all the time, why are you not according the plaintiff the same rights as the defendant?

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