ICE Seizes Over 1 Million Websites With No Due Process; Apparently Unaware That Copyright & Trademark Are Different

from the this-does-not-bode-well dept

Over the years, we’ve written an awful lot about asset forfeiture and how it is basically the government stealing shit they want with almost no due process. But the reason we started writing about asset forfeiture was when ICE used that process to seize a bunch of websites based entirely on the claims of the RIAA and MPAA that those websites were distributing copyright-infringing material. It turned out those claims were totally bullshit, leading to ICE eventually agreeing to return a blog over a year after it had been seized, and two others after holding them for over five years.

I’m still perplexed that this story was almost entirely ignored by the media. This was outright censorship by the US government — the equivalent of seizing a printing press from a publication and holding it based on nothing other than some private party’s complaints about the content of their publication. Incredibly, an ICE official, soon after the initial seizures, made the following bold claim:

“People told us that we will fail if we seize these domain names, and that we’ll look foolish,” said Erik Barnett, assistant deputy director of the US government’s Immigration and Customs Enforcement (ICE) team, which began conducting Operation In Our Sites last year.

He also stated that none of the seized sites had challenged the seizure, which was literally false. Barnett, in case you’re wondering, has moved on to the private sector and is apparently now the Regional Head of Europe for Financial Crime Threat Mitigation for HSBC, a company that was described in a recent article this way:

DRUG cartels, mafia, celebrities and the European aristocracy: when it comes to laundering ?dirty money? world giant HSBC is king and proof it may actually be impossible to regulate banks.

[….]

The French-TV made ?Banksters? claims HSBC was the go-to bank for ?a raft of illegal activities, from money laundering for the mafia, to enabling tax evasion and currency manipulation?.

Right.

ICE’s boss at the time of these seizures, John Morton, also made some flabbergasting comments:

We don’t have any interest in going after bloggers or discussion boards,” he said. “We’re not about what is being said by anybody. We’re about making sure that the intellectual property laws of the United States, which are clear, are enforced. When somebody spends hundreds of millions of dollars to develop the next movie or a billion dollars to develop the next heart medicine, the innovation and the enterprise that went into that effort is protected as the law provides. It’s that simple.”

Except it wasn’t that simple, as proven by the fact that ICE eventually returned all of those sites. Without getting any sort of apology from Morton. Or any acknowledgement that the 1st Amendment actually bars you from seizing a website. Oh, and if you’re wondering, Morton is now the Chief Compliance Officer at Capital One, a company that paid out a $200 million fine for deceptive marketing, and also is viewed as the “least favorite” credit card company… perhaps because it sues more of its customers than any other credit card company.

So, anyway, back to ICE and seizing websites. Even after its total flop in seizing blogs for false accusations of copyright infringement, ICE has gone right on seizing websites, though most of them appear to be focused on seizing sites selling counterfeit goods, rather than blogs and forums discussing music.

Still, it seems notable that in late November, ICE proudly announced that it had seized over a million websites, though frankly, the press release raises a hell of a lot more questions than it answers. First off, it appears that ICE has no clue that copyright and trademark are entirely different things.

More than 1 million copyright-infringing website domain names selling counterfeit automotive parts, electrical components, personal care items and other fake goods were criminally and civilly seized in the past year through the combined efforts of law-enforcement agencies across the world, high-profile industry representatives and anti-counterfeiting associations.

“Copyright infringing website domain names” already is a weird description (were the URLs themselves infringing?) but it’s made even weirder by saying that these sites were seized because they were selling counterfeits. Counterfeiting is a trademark issue, not a copyright one. Those laws are entirely different. Shouldn’t a government agency in charge of enforcing these things… uh… know the difference?

The ongoing intellectual property enforcement initiative targeting fake websites, dubbed Operation In Our Sites, was facilitated by the National Intellectual Property Rights Coordination Center (IPR Center), a joint-task force agency led by U.S. Immigration and Customs Enforcement. The IPR Center, which stands at the forefront of the U.S. government?s response to IP theft, worked directly with key international law-enforcement authorities and industry organizations representing the electronics sector, luxury brand-name designers, film and entertainment and several entities specializing in apparel and accessories through the major enforcement effort.

Operation In Our Sites is the same one that was named when ICE seized all those sites I mentioned earlier — in which blogs and discussion forums were seized, with no evidence to back them up, and held by the US government for between one and five years, before finally being handed back to the original owners because no one could ever prove those sites actually broke the law. Seems kinda weird to now tout that same operation as a roaring success.

And, need we remind you that, under the “Operation in Our Sites” banner, ICE once accidentally seized 84,000 sites, denied it for nearly a week and then finally admitted they fucked up? This is the same Operation they’re now promoting for seizing one million sites? It’s not clear if they include those 84,000 that were done “accidentally” in that total.

Roughly 33,600 website domain names were criminally seized in a collaborative effort between ICE?s Homeland Security Investigations (HSI), Europol, Interpol and police agencies from 26 different countries. Industry partners participating in the operation were fully responsible for civilly seizing 1.21 million domain names and shutting down 2.2 million erroneous ecommerce links featured on social media platforms and third-party marketplaces.

Hmm. “Industry partners” were “fully responsible for civilly seizing” these domain names. Does that mean the US government “seized” them… or that the “industry partners” got the domains. Because if it were the latter… that seems extraordinarily questionable. I know that, in some of those earlier seizures, we found it odd and distasteful that ICE announced the seizures of sites from a Hollywood studio, but it’s another thing altogether if the federal government is literally taking domains and handing them to private companies without even a whiff of due process. Even if this just means that the “industry partners” gave ICE a big list, then we’re still left with a fairly long list of due process questions. Did ICE really check all 1.21 million domains before having them seized? Considering that they fucked up so badly a few years ago at a time when they merely seized five domains, forgive me for questioning the amount of review that went into 1.21 million.

Investigations led by HSI resulted in the removal of copyright-infringing websites that sold counterfeit airbags and integrated sensors, both commodities that present a potential safety hazard. An investigation based in Louisiana led to the seizure of five website domain names ? including Chinaseatbelt.com; Airbagpart.com; Chinasafetybelt.com; Fareurope.com; and Far-europe.com ? involved in the sale of fake automotive parts. A joint case between HSI and Department of Defense investigative agencies resulted in the removal of PRBlogics.com, a copyright-infringing website offering counterfeit integrated sensors.

Once again, ICE makes it clear that they haven’t the slightest clue that copyrights and trademarks are not just separate laws, but that they originate from two totally different parts of the Constitution. None of what’s being described as “copyright-infringing” appears to be copyright related. Look, I get it that some people — often reporters! — mix up copyrights and trademarks (and patents!), but this is a law enforcement agency of the US government, who actually (for reasons that make no sense at all) has a major role in enforcing intellectual property laws. You’d think that at least they could get this kinda stuff correct.

Oh, and I should be clear: this isn’t just ICE in general. This is a special division of ICE specific to “Intellectual Property.”

?The IPR Center is committed to supporting enforcement actions that target copyright-infringing websites threatening the health and safety of unsuspecting consumers by offering dangerous counterfeit goods,? said IPR Center Director Alex Khu. ?Collaborative efforts with external law enforcement agencies and industry have led to a crackdown on intellectual property theft that negatively impacts economies and funds organizations involved in other criminal activities.?

The “IPR Center” doesn’t know the difference between trademarks and copyrights?!? Shouldn’t… uh… that be seen as a problem?

Each year, the market is flooded with counterfeit products being sold at stores, on street corners and online. Additionally, criminals have taken advantage of the internet to deceive, sell and ship fake products directly to American consumers. The most popular counterfeit products seized each year include watches, jewelry, handbags, wallets, wearing apparel/accessories, consumer electronics/parts, pharmaceuticals and personal care products.

As we’ve discussed for years, multiple studies have shown that people buying counterfeit watches, jewelry, handbags, wallets and clothing tend not to be “tricked” into buying these things. Most buy them because it’s all they can afford. The studies have shown that many of these purchases are aspirational, in that these people want to buy the real thing, but can’t afford it yet. Studies have also shown that the same people who buy these knockoffs frequently will later buy the real thing when they can afford it. In short, these counterfeit purchases rarely result in any harm. The consumer has not been deceived. The trademark holder has not lost any money (and, indeed, may make money in the long run). This just seems to be ICE shutting down websites because it can.

Anyway, this press release is so bizarre, and so devoid of actual information, I’ve fired off a FOIA request asking for the details of these “seized” domains and the communications with those industry partners. Should ICE ever decide to obey the law and respond to the FOIA, we’ll share it here. I wouldn’t recommend holding your breath.

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Comments on “ICE Seizes Over 1 Million Websites With No Due Process; Apparently Unaware That Copyright & Trademark Are Different”

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45 Comments
komori, says:

trust

“…this story was almost entirely ignored by the media”

because the establishment media personnel have great trust in the institutions of American government.

Is there something wrong with that trust? The media and citizens can’t possibly monitor and investigate all the complex government activities in play each day — where do you draw the line on trusting your government?

Uriel-238 (profile) says:

Re: The line on trusting institutions

Said institutions have an established pattern of corruption and misconduct. We’ve already heard a few bad apples countless times to suggest isolated bad actors.

They’ve long, long earned our distrust.

Considering the Catholic Church’s recent scandals, that indicates even the oldest most bedrock institutions are subject to corruption from within.

We’re learning no institution can be trusted without direct accountability. And they’ll gladly betray victims for preservation of the reputation of the whole.

So we should distrust them all.

Anonymous Coward says:

for reasons that make no sense at all) has a major role in enforcing intellectual property laws.

I see a weird way to explain this as mission creep. As Immigrations and Customs Enforcement, they plausibly had authority preventing physical import of contraband across the border. Like most government agencies, they inevitably decided they wanted more power, so they assumed responsibility for interfering with contraband in other venues. That explains their infamous (and sadly not derided nearly often enough) panty raid. With the rise of e-commerce, it makes sense that ICE would decide to self-expand to online contraband. As with most things involving a computer, doing the job right is hard, and government agents have plenty of outs, so why bother restricting yourself to disrupting only proven dangerous contraband, when you can go disrupt alleged contraband for a fraction of the effort?

Uriel-238 (profile) says:

Re: Low hanging fruit

It seems a going trend when law enforcement finds new ways to allegedly do their job, it is ways that require less work and less exposure to risk. Even if the seizures and convictions are of less quality, maybe not even unlawful.

ICE throws children into pens, but by the time those captures are logged and reported by pro-law-and-ordered press, every waif and toddler has turned into a mustachioed, gunslinging bandito.

Look at what a great job they’re doing!

Uriel-238 (profile) says:

Re: Re: Re: ICE involvement in family separation, child detainment.

CBP separates them at the border.

ICE seeks out undocumented persons inside the states, including children, and detains them indefinitely.

So yes, they’re doing plenty of child-into-pen throwing.

And yes, ICE is directly involved with the Trump administration family separation policy.

Anonymous Coward says:

time constraints?

The first half of the article is well referenced, far more than it needs to be, but the last half is bare. Maybe we’ll just have to accept all these documented, scientifically backed "facts" on blind faith.

"… multiple studies have shown … … The studies have shown that … … Studies have also shown …"

Anonymous Coward says:

Re: Re: Re: time constraints?

While it’s certainly true that many surveys, polls, market research and other types of ‘studies’ are basically a form of pre-determined propaganda, it’s usually not hard to figure out which side is financing it by looking at the inclusion (and omission) and actual wording of questions. But that’s only if the raw survey gets released to the public, as many are apparently (but not surprisingly) kept locked up.

And then there are all those late night infomercials on virtually every single cable channel that brazenly site phantom studies to “prove” their point.

That Anonymous Coward (profile) says:

“When somebody spends hundreds of millions of dollars to develop the next movie or a billion dollars to develop the next heart medicine”

What are things that never happened?
I dunno why they keep making movies, the paperwork says each one is a complete loss from the word go no matter how much it makes at the box office they get a tax writeoff for the loss.

No one is spending billions developing a drug, a majority always seems to go for lobbying and commercials convincing people they need this new drug & evergreening older drugs so they can keep gouging the public.

“Investigations led by HSI resulted in the removal of copyright-infringing websites that sold counterfeit airbags “

Why didn’t they seize Toyota for using all of those Takata airbags that seemed pretty counterfeit as they harmed more than helped.

“A joint case between HSI and Department of Defense investigative agencies resulted in the removal of PRBlogics.com, a copyright-infringing website offering counterfeit integrated sensors.”

My question is how many millions did we pay them before we figured out they were bunk?

Anonymous Coward says:

airbags

Things like airbags might not actually be technically counterfeit, but could be factory rejects sold on the black or grey market, or another manufacturer whose products have not [yet] been evaluated, tested, and approved by the NHTSA for sale in the USA. It’s a problem with almost any kind of government regulation, that a black market is sure to arise to bypass the inefficiency, bottlenecks, and high cost of the officially sanctioned product resulting from stringent regulation.

Anonymous Coward says:

Re: Re: Re:

We don’t know how much was seized due to copyright vs trademark yet. But are you suggesting he doesn’t hate it when copyright law is enforced? Please provide examples of him enjoying it when copyright law was enforced.

As far as your Pavlovian reflex to censor someone you disagree with, well duh, of course you did.

That One Guy (profile) says:

When more knowledge means less power, play dumb

Once again, ICE makes it clear that they haven’t the slightest clue that copyrights and trademarks are not just separate laws, but that they originate from two totally different parts of the Constitution

Hey, the ones giving them their orders conflate the two because it’s to their benefit to lump copyright and trademark together, why wouldn’t they follow suit?

Wrong Information says:

Bad info

So by running through the links in this chunk of the article:
“Oh, and if you’re wondering, Morton is now the Chief Compliance Officer at Capital One, a company that paid out a $200 million fine for deceptive marketing, and also is viewed as the “least favorite” credit card company”

While the fine was issues to Capital One, who Morton appears to work for, the actual “least favorite” company on that list is called Credit One. Capital One actually the 5th best (7th worst if you prefer).

askme says:

FOIA???

This article lays out a lot of questionable activity, but without taking any action, it will remain just that, If this author and Techdirt are serious about this topic, they will take on the task of submitting requests under Freedom of Information Act. Nearly all of the material to answer the “questionable” topics should all be well within the mandate of FOIA requests and/or legal filings.

I would urge the author and Techdirt to do some research and make this into a much much harder hitting piece.

Wolfie0827 (profile) says:

Re: FOIA???

Uhm… How about you actually read the article…

” I’ve fired off a FOIA request asking for the details of these “seized” domains and the communications with those industry partners. Should ICE ever decide to obey the law and respond to the FOIA, we’ll share it here. I wouldn’t recommend holding your breath.”

Straight from the last paragraph of the article.

spamvictim (profile) says:

not the least favorite

The “least favorite” crack is wrong — look at the web site and you’ll see that people hate Credit One, which is unrelated to Capital One, who gets relatively few complaints. They do file a lot of lawsuits, but that’s because they have a lot of subprime borrowers who default.

On the other hand, that has little to do with the main point, which is that ICE just wants to hurt people, regardless of what the law says.

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