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Homeland Security Finally Files For Civil Forfeiture Of Domains Seized Back In June
from the taking-their-sweet-time dept
While we've been paying a lot of attention to the domain seizures by Homeland Security's ICE (Immigration & Customs Enforcement) group in November, we also covered a similar operation that took place back in June. It's been noted that no actual charges have been filed against the operators of those sites. But in early December, without most people noticing, apparently ICE finally filed to officially commence civil forfeiture procedures against those domains (thanks to Terry Hart who noticed this). To understand what's going on here, I'll again point you to Hart's explanation of the difference between seizure and forfeiture. Basically, seizure is simply the first step in a forfeiture process (a process, that we've noted is regularly abused by law enforcement). It doesn't appear the owners of these sites have been charged with anything yet at all. It's just that, effectively, the sites themselves are being charged with being used in the commission of a crime.
There's nothing particularly surprising or enlightening in the forfeiture proceeding document, other than acting as official notification if anyone wishes to claim a legal interest in the "property" in question. They would need to contest the forfeiture within 60 days of December 17th. This covers the domain names TVshack.net, Movies-Link.tv, ZML.com, Now-movies.com, ThePirateCity.org, PlanetMoviez.com, Filespump.com. As far as I know, there has been little indication that any of the original domain holders for those domains plan to contest the forfeiture process. Many have already moved on to other domains anyway.
There's nothing all that enlightening in the filing. It's pretty similar to the affidavit we saw that was used to seize the more recent domain names, with a few similar technical errors, but nothing necessarily as egregious as the errors in the more recent case. Basically, an ICE agent downloaded or streamed a few movies on some sites the MPAA pointed them to. The MPAA then said "those movies are not legally available online," and, voila, now ICE says it should get to own the domain name. It's basically ICE admitting that it's working for Hollywood now -- which explains why it announced those original seizures at Disney's headquarters (which still seems like a huge conflict of interest that no one has yet to explain). Oddly, it does not appear that anyone at ICE sought a third party, non-biased analysis of the legality of what was going on. They simply relied on the MPAA entirely.
All that said, I have to admit that I'm still at a loss as to how this is really fits under Homeland Security's mandate. Defenders of this point out that ICE has long had intellectual property issues under its purview, but those issues were supposed to be focused on preventing counterfeit products from entering the country. To extend that to internet websites seems like a huge stretch. Either way, it seems like Homeland Security must have more important things to work on.
There's nothing particularly surprising or enlightening in the forfeiture proceeding document, other than acting as official notification if anyone wishes to claim a legal interest in the "property" in question. They would need to contest the forfeiture within 60 days of December 17th. This covers the domain names TVshack.net, Movies-Link.tv, ZML.com, Now-movies.com, ThePirateCity.org, PlanetMoviez.com, Filespump.com. As far as I know, there has been little indication that any of the original domain holders for those domains plan to contest the forfeiture process. Many have already moved on to other domains anyway.
There's nothing all that enlightening in the filing. It's pretty similar to the affidavit we saw that was used to seize the more recent domain names, with a few similar technical errors, but nothing necessarily as egregious as the errors in the more recent case. Basically, an ICE agent downloaded or streamed a few movies on some sites the MPAA pointed them to. The MPAA then said "those movies are not legally available online," and, voila, now ICE says it should get to own the domain name. It's basically ICE admitting that it's working for Hollywood now -- which explains why it announced those original seizures at Disney's headquarters (which still seems like a huge conflict of interest that no one has yet to explain). Oddly, it does not appear that anyone at ICE sought a third party, non-biased analysis of the legality of what was going on. They simply relied on the MPAA entirely.
All that said, I have to admit that I'm still at a loss as to how this is really fits under Homeland Security's mandate. Defenders of this point out that ICE has long had intellectual property issues under its purview, but those issues were supposed to be focused on preventing counterfeit products from entering the country. To extend that to internet websites seems like a huge stretch. Either way, it seems like Homeland Security must have more important things to work on.
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Now, it's basically ICE saying that will enforce the laws when infractions are pointed out to them.
it does not appear that anyone at ICE sought a third party, non-biased analysis of the legality of what was going on
When exactly did that become a requirement for law enforcement? Do police have to ask someone else on the highway if you were speeding?
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If it is criminal then the buren of proof is a bit more stringent - no?
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It's now ICE saying that they will enforce the laws when infractions are pointed out to them by those they wish to listen to. Many other infractions have been pointed out the ICE that ICE has completely ignored. The question as to why they paid attention to these claims is still, unofficial opinions withstanding, unanswered.
When exactly did that become a requirement for law enforcement? Do police have to ask someone else on the highway if you were speeding?
It is a requirement of the law that an actual infraction have occurred. In the case of speeding the officer can not just state "it looked like he was going fast", in those cases the speed gun is considered the 3rd party, non-biased analysis.
In these cases ICE just claimed based on a 3rd party biased analysis that the content was a problem.
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If it was criminal, then “contributory copyright infringment” is not a viable theory.
Sony v Universal (1984) observes that the theory of contributory copyright infringment has not been enacted into statute. And that fact was noted in Grokster.
It's a due process violation to hold someone criminally guilty for violating an unwritten law.
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The Government will simply borrow (not pay back) from Social Security. Can you see it? 77 million old folks (baby boomers) in open revolution against having their future (they paid for it) stolen again by the Republican Party? Will it be Ohio State all over again except at the old folks home? Bring out the National Guard to protect us against people with canes and walkers.
Will they shoot your Grandma and Grandpa?
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We don't know, it is all speculation. However, it is safe to say that these sites would certainly appear to be operating outside of the law.
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Public Notice link not working
Attempting to access:
http://www.forfeiture.gov/ViewNotice.aspx?n=34228&a=0
results in:
“We are sorry, but we are unable to locate the page you requested or an error occurred while processing your request.”
Has anyone else had more success? Or preferably a better link? I've also tried using the search at forfeiture.gov. But not gotten any records back.
Someone want to give me a hand, please? I normally browse without javascript, but I've tried enabling it, and still no success. Also, this machine doesn't have Adobe Flash installed, but I have access to less secure machines.
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Police have speed detecting devices, calibrated "correctly" (as required for the enforcement to stand up in court) to act as demonstrable proof that you were speeding. Citizens may or may not have certified speed tracking devices, but for the enforcement agent to not demand the burden of proof and go through the due process of critical review, the accusation is arbitrary hearsay. Reasonable "proof" is very much a "requirement for law enforcement", despite your suggestion otherwise.
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Their thinking?
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Care to elaborate?
Lanzetta v New Jersey:
(Emphasis added. Footnote omitted.)
“No one may be required at peril of life, liberty or property to speculate as to the meaning of penal statutes.”
So, do you want to elaborate on these supposed “criminal aspects”?
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"explained" is part tense
Both are technically correct but convey different meanings.
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It’s one of the reasons I hate the 'grammatical rule' of ending a sentence with a preposition. There is nothing conceptually wrong with saying "no one has explained it yet". However, the effete high-society snobs in the Victorian era introduced a good number of these 'rules' so that the educated would sound "better" than the uneducated poor. And that's the only reason we have such rules.
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Re: Public Notice link not working
Using Lynx on Solaris, I also get:
“We are sorry, but we are unable to locate the page you requested or an error occurred while processing your request.”
If someone's able to view http://www.forfeiture.gov/ViewNotice.aspx?n=34228&a=0 using IE, then I'll go log into a Windows box somewhere.
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Catch-22
That's some law, that catch-22.
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Really? and the proof of that would be?
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Again ...
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The major mistake site owners keep making is thinking that because the files are hosted on another service, that they can point to them without any risk. The sites were great access points commonly used by people looking to obtain pirated material, and the sites knew it and continued to push the stuff.
It is very simple. Absolute proof is for a judge and jury. Probably cause is all that is required to obtain a search warrant. The rest of the case as we know it has been documented on here. Keep up with the reading!
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Re: Their thinking?
LAst I checked *.tv was an international TLDm meaning that the ICE doesn't have jurisdiction. I think Imm'a crack open the popcorn and opium.
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Re: Public Notice link not working
Weird. For whatever reason it appears to have moved to:
http://www.forfeiture.gov/ViewNotice.aspx?n=36208&a=0
If it's still not there, you can do a search on "TVshack" on their search engine and it should turn up.
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Link now working with Firefox on Ubuntu. Javascript off.
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Caselaw on the linking issue:
Perfect 10 v Google (9th Cir., 2007)
(Emphasis added.)
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Remanded for a civil proceeding on that issue.
MGM v Grokster
(Emphasis added.)
A common-law criminal charge of “contributory infringement” was not contemplated by the Ninth Circuit.
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But if the government wants to charge that providing a hypertext link to infringing material “encourages” infringement, then that is insufficient to find criminal liability. Not without more.
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AT THE SPEED OF GOVERNMENT!!!
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Are you suggesting the federal government has to a brand new agency every time it passes a new law? Laws are quite reasonably enforced by whatever agency is the closest. ICE already handles copyright infringement through importation at the border, so this seems like a clear fit.
The other possible agencies I can think of are all way a way worse fit: BATF, Secret Service, US Marshalls, or FBI.
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“The loss of First Amendment freedoms, for even minimal periods of time, unquestionably constitutes irreparable injury.” ——Elrod v Burns (1976)
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