Techdirt Sues ICE After It Insists It Has No Records Of The 1 Million Domains It Claims To Have Seized

from the transparency-in-censorship dept

Earlier today, we sued ICE for its failure to provide relevant documents in response to a FOIA request.

There’s a pretty long backstory here, so let’s go back about a decade. In the summer of 2010, we found it somewhat disturbing that ICE had “seized” a bunch of websites and was announcing this from Disney’s headquarters. It raised all sorts of questions, starting with the big First Amendment questions. There are a whole bunch of cases making it clear that prior restraint is not allowed under the First Amendment. In Fort Wayne Books v. Indiana, the Supreme Court made it quite clear that you couldn’t “seize” an entire bookstore in response to one possibly illegal (in that case, obscene) book:

The pretrial seizure of petitioner’s bookstore and its contents… was improper. While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, books or films may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing. The risk of prior restraint, which is the underlying basis for the special Fourth Amendment protection accorded searches for and seizures of First Amendment materials, renders invalid the pretrial seizure here. Even assuming that petitioner’s bookstore and its contents are forfeitable when it is proved that they were used in, or derived from, a pattern of violations of the state obscenity laws, the seizure was unconstitutional.

It seemed quite clear to me that seizing an entire website, based merely on accusations of copyright infringement, presented the same problem.

And here, the situation was even worse. Because it wasn’t being done based on a real investigation by the government, but entirely on the say so of industry — and, in particular, an industry that has a long history of over exaggerating and misrepresenting the “threats” of the internet. As we noted at the time, if the FTC/DOJ announced plans to bring antitrust charges against Google, and did so from Microsoft’s headquarters… people would freak out. And yet, announcing website seizures from Disney’s headquarters was no problem?

ICE continued seizing websites under this program, which it called “Operation In Our Sites.” Later in 2010 we found a bunch of seizures especially problematic, because among the seizures were two blogs, an open discussion forum and a search engine. Seizing a blog was clearly prior restraint. Indeed, over a year later, ICE quietly handed back one of the blogs, and later admitted that it didn’t have any evidence at all that the site was engaged in copyright infringement. Later documents (only unsealed due to a court challenge by EFF) revealed that ICE had seized that blog, Dajaz1, based entirely on false claims by an RIAA exec, and took over a year to hand back the domain (including getting the court to grant “secret” extensions that it wouldn’t even tell Dajaz’s lawyer about) because it kept waiting for the RIAA to provide the evidence it insisted it had… but never seemed to be able to give to ICE.

And that was not even the worst of these situations. In 2012, nearly two years after seizing it, ICE returned a forum website after that site sued the government. The US government quickly dropped the case and handed back the domain, more or less admitting it had no evidence.

Oh, and then after sitting on the website of another blog for five years, ICE quietly returned the blog OnSmash without ever filing any charges.

Think about that. Lots of people are up in arms about ICE these days for very good reasons. But the fact that these thugs have been literally seizing and pulling down entire websites — a clear First Amendment violation — based entirely on the say-so of a few biased corporate execs should be a major scandal.

That takes us to late last year, when I saw that ICE had put out a truly astounding press release. Apparently, Operation In Our Sites has continued unabated for all these years, and ICE was happily crowing about having now seized over a million domains. Given the problems we had found with some of their earlier seizures (and the fact that they had to return a bunch of them), not to mention the concerns about censoring websites on the say so of corporate execs, we found it even more bizarre that the press release proudly stated that the seizure efforts were done with “high-profile industry representatives.” It was also truly bizarre that the press release from a government agency tasked with enforcement of certain copyright and trademark laws repeatedly seemed to confuse trademarks with copyrights.

Still, given that ICE had announced the seizure of over 1 million domains in partnership with “high profile industry representatives,” we figured at the very least the public should be able to find which sites had been seized and with which industry execs. So back in December I sent a FOIA request. ICE — incredibly — came back and claimed it had “no responsive records.” We appealed. In April, ICE agreed with our appeal and sent the FOIA back for a new search. We heard absolutely nothing from ICE after that. So early this morning, with the help of the non-profit Cause of Action, we sued ICE to get them to obey the law and respond to our FOIA request.

If it strikes you as somewhat unbelievable that ICE might seize over a million domain names in coordination with “high profile industry representatives” and then have no records of what those domains are, or any communications with those “high profile” industry execs, welcome to the club. We hope that ICE does the right thing, obeys the law, and provides the documents we have requested.

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Comments on “Techdirt Sues ICE After It Insists It Has No Records Of The 1 Million Domains It Claims To Have Seized”

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Bruce C says:

Re: Re: Re:4 Re:

Pro bono representation != no significant expenses. For one example, overtime to identify, find and provide documents relevant to the case can add up quickly.

And if TD and its readers want Cause of Action to continue to be able to represent people pro bono, voluntary donations or merch purchases seem reasonable.

Bobvious says:

Re: Geocities sites

I’ll have to Ask Jeeves to check All the Web to see what you’re referring to, once he gets back from Alta Vista. Apparently he’s been talking to some Yahoo who got Excited about a HotBot he saw on the beach, where a WebCrawler nearly stepped in a DogPile. I won’t Lycos that’s not the done thing. Apparently information wants to be free, but does InfoSeek that freedom?

Mike Masnick (profile) says:

Re: Re:

No. Not the only one. We’ve asked about that in the past, and the best answer they can give (and it’s not a good one) is that since they’re in charge of blocking counterfeits coming across the border… that somehow gives them jurisdiction over websites that might allow for… copyright infringement. It is not a strong argument.

OA (profile) says:

Re: Re: Re:

My guess, it’s a combination of two things:

  • ICE took the initiative and was given the go-ahead from those involved.
  • And, more importantly, they have the needed institutional extralegal attitude that allows them to do this with least internal, cultural and structural friction.

The configuration of the lawlessness derived from (and tolerated because of) their immigration activity must be compatible with copyright mafia activity.

Put another way. Immigration is the "hot hand" and the copyright cartel is riding that hot hand.

Abner Singleday says:

Re: Re: ICE in charge of blocking counterfeits coming across the border.

It is not a strong argument.

Oh, really? — Copyright is DIRECTLY in the Constitution. ALL gov’t agencies are therefore to protect it, just as ALL are to ensure fair and equal treatment with due process to every person (NOT to corporations, though, which are mere legal fictions NOT in the Constitution).

ICE is fine as no other agency is doing this work. Across the border is good enough. I commend ICE for doing so. It’s certainly in accord with MY views.

Now, do you think that gov’t agencies are to select which parts of the Constitution they’ll obey? You have to logically if question what ICE is doing in this. — And certainly here at Techdirt the Copyright Clause is reviled on site and violated in practice by fanboys.

Madd the Sane (profile) says:

Re: Re: Re: ICE in charge of blocking counterfeits coming across the bor

The right for congress to create copyright laws is in the Constitution. Copyright in itself is not enshrined in the Constitution. Also, they must be for the betterment of the arts and science: I’m not seeing this here.

Put another way, this would be like the IRS arresting you for giving booze to teens. It might be a "good" thing to do, but outside of the purview of the office involved.

Also, isn’t Copyright a civil matter? If so, federal institutions taking over sites is… very questionable.

Anonymous Coward says:

Re: Re: Re:2 ICE in charge of blocking counterfeits coming across the

The right for congress to create copyright laws is in the Constitution.

Privilege. Rights are for people, not governments (or corporations…).

Also, they must be for the betterment of the arts and science: I’m not seeing this here.

The Constitution’s wording is not so clear. It could be read as an implication that Copyright will do that; it’s a somewhat twisted reading to say that anyone has to prove that, for a copyright to be valid.

Anonymous Coward says:

Re: Re: Re: ICE in charge of blocking counterfeits coming across the bor

You’re on mighty shakey ground talking about the Constitution there, Bucko. Ignoring the obvious fact that the Constitution does NOT in fact require EVERY governement agecny to enforce EVERY statute that Congress might have the constitutional power to adopt, there’s the little fact that the current copyright laws VASTLY EXCEED the constitutional power.

The Constitution says "limited terms". Congress has repeatedly extended the terms of copyrights ex post facto and has extended them to such a degree that they are unlimited for practical purposes. That’s not allowed constitutionally.

The Constitution talks about rights to "writings". That’s been extended to things like characters and settings, which clearly are neither "writings" nor direct substitutes or equivalents. That’s not allowed constitutionally. Arguably software isn’t a "writing", for that matter.

The constitution says "To promote the progress of science and useful arts". Copyright has been expanded without any meaningful examination of whether the expansions promoted the progress of anything. That’s possibly unconstitutional, depending on whether you think the government should actually be required to give a shit about the stated purposes of its powers.

Mason Wheeler (profile) says:

Re: Re: Re:2 ICE in charge of blocking counterfeits coming across the

As a software developer, I can say from personal experience that software is most definitely a "writing."

The point where things get a bit hazy is the compiler. The relationship between written software (aka. "source code," the stuff that the programmer actually writes) and executable software (the part that the computer runs, which is built from the source code by a program called a compiler) is almost perfectly analogous to the relationship between a blueprint and a building built from it. And the law allows for copyrights on blueprints, but not on buildings.

But for whatever reason, that same copyright relation does not hold in the world of software; people have been registering copyrights on compiled software for decades now, and successfully suing people over infringing such copyrights. The legal landscape would be a lot better if that were not the case.

Anonymous Coward says:

Re: Re: Re:3 Re:

It costs a lot of people time and a whole lot of money to make a production that will hopefully reap a tidy profit. Then you got bum thieves trying to cash in on someone’s hard work and investment to make a tidy profit on something that is legally protected and not theirs. How is that NOT THEFT? Keep your sock, you’ll need it.

PaulT (profile) says:

Re: Re: Re:4 Re:

"hopefully "

You accidentally included the vital word. Making something does not guarantee you a profit. The majority of small businesses in other areas do not make money, nor will a creative endeavour. But, I don’t hear restaurant owners whining that people were making their own spaghetti meatballs at home as the reason they shut down.

Quite apart from the fact that you have to lie about everybody who opposes the current one-sided copyright state that literally robs culture from the public, nobody guarantees you a profit because you made something. Never have, never will.

Meanwhile, the people whose businesses get robbed from under their feet as per this article because of a claim, never a conviction – merely accusations – deserve as much sympathy as you lot until they’re convicted of something. You don’t get magic profit-making powers just because you claim that it’s a song being taken from you instead of a website – and the people who have their stuff stolen by ICE have lost something way more tangible than anything you claim to have lost.

If you guys would operate fairly under the law there wouldn’t be so much of a problem – but since you have to lie, cheat and steal while pretending to hold to moral high ground, you don’t have the support of the public.

ECA (profile) says:

WHY them?
Who We Are
U.S. Immigration and Customs Enforcement (ICE) employees protect America from the cross-border crime and illegal immigration that threaten national security and public safety. To carry out our mission, ICE focuses on legal and safe immigration enforcement, terrorism prevention and combating transnational criminal threats.

Why them..
I remember this happening ANd Still have the same question..
WHY are they responsible for this?
I did some looking at the time and it comes out the ICE has been made responsible for over 40 other Police agencies..
These folks Top the US Marshals.

ECA (profile) says:

Re: WHY them?

Who gave them this much power?
Because as far as I understand they arnt supposed to go past the 200 mile Border range, and have gotten in trouble for doing so.
Beyond the need/use at international Airport, they have gone around randomly to Train stations to do their jobs..

ERO enforces U.S. immigration law at, within, and beyond our borders. ERO’s work is critical to the enforcement of immigration law against those who present a danger to our national security, are a threat to public safety, or who otherwise undermine the integrity of our immigration system. ERO operations target public safety threats, such as convicted criminal aliens and gang members, as well as individuals who have otherwise violated our nation’s immigration laws, including those who illegally re-entered the country after being removed and immigration fugitives.

And they seem to be making their OWN rules.

HSI is the principal investigative component of DHS consisting of 8,500 employees, 6,500 special agents and 700 intelligence analysts assigned to 200 cities throughout the United States and 45 countries internationally. HSI’s international presence represents DHS’ largest investigative law enforcement presence abroad. HSI conducts transnational criminal investigations that protect the U.S. against threats to its national security and brings to justice those seeking to exploit U.S. customs and immigration laws worldwide. HSI has broad legal authority to investigate all types of cross-border criminal activity.

OPLA is the largest legal program in DHS with more than 1,100 attorneys. OPLA serves as the exclusive legal representative of DHS in exclusion, deportation, and removal proceedings before the U.S. Department of Justice (DOJ), Executive Office for Immigration Review (EOIR) in immigration courts across the country. OPLA also provides a full range of legal services to all ICE programs and offices. OPLA provides legal advice to ICE personnel on their law enforcement authorities, the Federal Tort Claims Act, the Freedom of Information Act and Privacy Act, ethics, contracts, fiscal law, and employment law. OPLA attorneys support DOJ in the prosecution of ICE cases and in the defense of civil cases against ICE. In addition to headquarters in Washington, D.C., OPLA operates in 60 locations across the country.

Why do they need THEIR OWN LAWYERS???

I would love a list of wages that are spent on this system of Justice(??)

Jake says:

Re: Re: WHY them?

"Because as far as I understand they arnt supposed to go past the 200 mile Border range, and have gotten in trouble for doing so."

ICE stands for Immigration and CUSTOMS enforcement. Your assertion is wrong. You’re conflating Border Patrol, Customs and Border Protection, and Immigration and Customs Enforcement. All under Homeland Security, and all very different agencies. ICE handles customs enforcement investigations which were previously performed by the US Customs Service, prior to its removal from the Treasury Department and inclusion in the new DHS.

Anonymous Coward says:

Re: WHY them?

"U.S. Immigration and Customs Enforcement (ICE) employees protect America from the cross-border crime and illegal immigration that threaten national security and public safety."

Good. Does that mean that they’ll give the Cherokee and the Apache their land back after shipping the illegal immigrants and their descendents back to Europe or whichever colonial power?

Anonymous Coward says:

Re: Re: WHY them?

LOL.. They might give the land back to the native tribes after they go underground to their well-stocked bunker complex just before the 3rd world war starts and google is driving its autonomous cars all over the landscape with the 360×360 viewcams and Michael Jackson, King of Pop returns from the grave!

I just threw that last part in there about the King of Pop returning!

TRX (profile) says:

So… 9 years of domain seizings. The average Federal bureaucrat has 262 working days per year. That’s 2,358 working days. That comes out to 424 domains seized per day. For an 8 hour working day, less breaks, checking email, meetings, and gossip, that’s 6.5 working hours per day. (which is, incidentally, a very generous figure). 65.2 seizures per hour.

That comes out to seizure of one domain every minute or so.

My goodness, those are some busy little beavers, aren’t they? I’m sure all proper diligence and paperwork are done for each seizure… and note time for reviews, follow-ups, and so forth aren’t included.

Qwertygiy says:

Re: Re: Re:

There is, of course, the fifth option.

Traditional facts, of course, are such difficult things. So hard, so cold. Your intentions, your aspirations, your hopes and dreams; none of that matters to a traditional fact. If you try hard enough, maybe you can stretch it until it fits your needs, but it’ll still be uncomfortable. Like that old pair of pants that you only keep around to show your dates that you wear a Size Medium.

Why go through all that trouble when you have the option of joining the latest trend? You don’t have to stretch, you don’t have to squeeze, you don’t have to pay your interns to cite your sources — heck, you don’t even need sources! (You’ll still need to pay those interns, for… other reasons.) Just build support for your goals by shooting the moon, no work required. Use alternative facts, proven to work for 99% of all politicians in 99% of all audiences.

Abner Singleday says:

Twice read, still wonder WHY. If get everything you want... SO?

Say you get the list of sites and names of EVIL COPYRIGHT OWNERS / AGENTS. Now what?

A) Sites are not books: anyone having a site made some sort of agreement with a registrar to follow some vague rules. Your similarity fails. You don’t have any problem with "Nazi" sites being taken down by registrars. And so on. Only question is where fits into your agenda.

B) Copyright owners have a right to work with gov’t to protect their products, while those pirating someone else’s works have ZERO rights. And as I’ve ‘splained, copyright necessarily requires only notice for takedown: that’s consistent with DMCA.

Your "analogy" or whatever you call that contriving "IF" with Microsoft and Google fails on two points:

1) Microsoft and Google are both essentially criminal organizations preying on The Public, have territory more or less amicably carved up, won’t rat on the other.

2) BUT IF either accuses other of violating the law and wants to be visibly credited with it, then that’d be perfectly okay, with ICE on the premises and being served champagne.

You were called out for claiming to be suing: technically true, but cleverly elided that you’re not paying for the lawyers. SO WHO IS? — Don’t know! Several Washington DC based attorneys and staff all for "transparency" except when comes to their funding. Since this is ICE and are a few hints in the work listed, my bet is they’re pro-unlimited-immigration using this for pressure.

Madd the Sane (profile) says:

Re: Twice read, still wonder WHY. If get everything you want...

You don’t have any problem with "Nazi" sites being taken down by registrars.

This isn’t the registrars taking them down, it’s the government. As such, different laws apply.

Copyright owners have a right to work with gov’t to protect their products[…]

Citation needed.

[…]while those pirating someone else’s works have ZERO rights.

So they don’t have the rights of life, liberty, and pursuit of happiness? We can kill them with impunity?

And as I’ve ‘splained, copyright necessarily requires only notice for takedown: that’s consistent with DMCA.

Many people have criticized the Notice and Takedown system as putting the burden of proof on the wrong person: the accused. It should be the accuser that needs to show proof that the accused did wrong. And saying "They did it" doesn’t work. People have abused the system for silencing critics and other, non-copyright issues.

Digitari says:

Re: Re: Twice read, still wonder WHY. If get everything you want

You mean like with Kavanagh, accused but not convicted, Sounds like DCMA for people, and many here on this sight applauded it. why the two faced atitude? serious question.

Same for Trump, Accused but not convited, seems hypocritical.

spin that.

Anonymous Coward says:

Re: Re:

Say you get the list of sites and names of EVIL COPYRIGHT OWNERS / AGENTS. Now what?

Well, if ICE hasn’t done anything wrong they should have nothing to fear. And if they have nothing to fear, they have nothing to hide.

It’s a bitch when your authoritarian go-to phrase gets on the other foot and used against you, isn’t it blue boy?

PaulT (profile) says:

Re: Re

"You don’t have any problem with "Nazi" sites being taken down by registrars. "

There is a major difference between registrars and ICE. See if you can work out what that is.

It’s strange how you always prattle on about how people are "wrong", yet in doing so display how you’ve not grasped the very fundamentals of the argument you’re trying to refute.

"Copyright owners have a right to work with gov’t to protect their products"

Yes they do. This should involve the courts, due process and the right to defence. Not someone having their property stolen by the government because someone claimed they were using it wrong.


The links and data are available if you stop braying about bullshit fantasies long enough to read them

"my bet is they’re pro-unlimited-immigration"

My bet is that you’re a moron who hasn’t a clue about anything in the real world – and I have way more evidence to support my theory.

Anonymous Coward says:

Re: Re: Re

Yes, indeed. ICE is a government agency, whereas registrars are just huge immortal inhuman corporate entities that exist only under government charters to begin with.

This business of thinking that nobody should get to say boo about abuses by "private" entities is a cancerous disease. I suggest you try to excise it from your thinking before it destroys your mind.

That One Guy (profile) says:

No, that seems about right

If it strikes you as somewhat unbelievable that ICE might seize over a million domain names in coordination with "high profile industry representatives" and then have no records of what those domains are, or any communications with those "high profile" industry execs, welcome to the club.

Oh I dunno, while they’re probably just stonewalling to avoid handing over embarrassing records after they got caught with their pants down the last time acting like good little goons obeying industry orders I wouldn’t consider it too unbelievable that they’d make sure to destroy any similar records this time around to avoid the same fate.

Can’t have those pesky records of the orders they got and obeyed leaking and exposing them yet again as chumps eager to do industry bidding after all.

Anonymous Coward says:

Re: No, that seems about right

ICE is working on behalf of the copyright enforcement industry. The same industry who initially published their records of how many college students they sent settlement letters to… until they realized it was fucking terrible PR and stopped.

Keeping records of who they shut down is the same as showing curious judges how their IP address generation mechanisms work – to be avoided at all costs.

Copyright is brain damage.

Digitari says:

Re: No, that seems about right

You are correct, Obama did horrible things, and President Trump is the bad guy, too funny. The congress and senate are the bad guys in this, from BOTH sides,
President Trump tries to fix it and the House investigates Tuesday, and the lapdog left scream "OMB OMB"

PaulT (profile) says:

Re: Re: Re: No, that seems about right

Yeah you go cling to that fantasy! It’s not that other people have a different opinion arrived to by honest, it’s all a conspiracy!

Whatever it takes for you to examine your own ideas and consider they may not be the unvarnished truth about everything. At least I am willing to entertain the idea that not all Trump fanboys are Russian hires, but rather just uneducated fools (people who Trump himself announced he lives)

R,og S. says:

Re: Re: Re:2 No, that seems about right

re: it’s all a conspiracy

PaulT, no offense, but guys like you were saying that 15 years ago, and I was having my college newsroom routinely, and surreptitiously rifled by a college administrator and his cronies in CVE "high policing. ”

Back then, I appealed for help to all the usual suspects, and some of them helped out. ACLU, EFF, Reporters Committee FFoP etc.

But media became brutally, and hatefully tribal around that time too, thanks to the US hate industry, neocon policy, and the politics of deference.

Then after I started the most diverse restaurant in an all white locale (which eventually contributed to the election of the first Somali senator ever elected in the US, Ilhan Omar), you guys were all whinging about conspiracies, while I got Nazi AND AIPAC affiliated cops waging a slander campaign behind my back.

And, you were saying that as Obama literally parked his limo a block away from my house, as various hydra-agency goons rifled through my neighborhood, smashing security cameras, stalking activists, and so on.

And, you are saying that now.

So, if the water moccassins fit, well, dont call them "native American souvenirs,” and deflecting to absurd tribalist narratives, and call them snakes what they are.

And stop kidding yourself that tossing out the phrase conspiracy theory is anything but a distraction, designed to cause division.

And for what its worth, I voted for Obama, and was equally horrified when I saw later that demicracy has died, and been relaced by a sectarian fascist America.

Its all over there in the US. Democracy has died, and the rest is just foxes licking hens blood at the bottom of a huge pig trough.

PaulT (profile) says:

Re: Re: Re:3 No, that seems about right

"PaulT, no offense, but guys like you were saying that 15 years ago"

…and maybe they had a point then too?

"But media became brutally, and hatefully tribal around that time too"

American media, maybe. I don’t watch that shit, though. It’s always been scaremongering and tribal from my point of view, though, I remember being shocked by the tactics back in the early 90s when I first visited there. But, as someone who grew up with British media and quickly grew to know that the Sun and Daily Mail and their ilk were full of fiction and not worth reading, it dismays me when people in my original country believe that crap as well.

"you guys"

Again, it’s fun when you participate in tribal tactics without realising it. Did you ever try taking a person’s views as their own, rather than assigning random groups to them?

"I voted for Obama"

Suuuure you did…

R,og S. says:

Re: Re: Re:4 No, that seems about right

Rarely do I agree with you, or even find your oppinions beyond blase ’or trite, but I agree with you about the British press.

And, yeah, I did vote for Barry, and have the potos to prove it. And, what a nightmare he turned out to be for journalists.

And, I accept your criticism of my adoption of tribal politics. The shoe fits, so, I cant argue with that.

I at heart a true journalist, but that is a useless profession in the US because “they ” whoever "tey ” are, so I like to provoke dialogue and so I use the paradigms that work in the moment.

And, your analyses of the identity politics movement are accurate. The ADL and its form of racism and zionist supremacy infected everything, and literally stalked activists and dissenters.

I remember the day I got their literature in my newsroom, it was like getting a poison pen letter from hateful bigots, or a slimy blackmailer, asking me to join their Kommunity Kulture Klubs and Kovens (K 4), cuz, Holocaust.

And of course, I was all too aware that most Nazis are zionists, or FBI provocateurs (like the famous nazi of Skokie IL, Frank Collin, who used to jackboot around trying to shakedown the ultra orthodox )and vice versa in the modern paradigm.

But, no, they didnt have a point 15 years ago, and “they ” dont now, because aswe see time and again, I am a game changer.

And LOOK! has now covered organized gang stalking, in an almost rational manner, albeit coyched in an ADLified, gendered narrative:

PaulT (profile) says:


The issue isn’t so much getting the data, but rather than that ICE aren’t keeping records of what they’ve taken (and/or are refusing to comply with FOIA law and use rather weak excuses to do so). Getting the data via other means won’t make ICE more compliant or reveal the extent of their failure and corruption, but a lawsuit might help.

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