Judge Lets Feds Censor Blog For Over A Year So The RIAA Could Take Its Sweet Time
from the no-rush dept
The good folks over at Wired, the EFF and the California First Amendment Coalition sprang into action and filed with the court to have those documents unsealed. And while the court agreed to unseal the documents back in March (and then ordered them unsealed "immediately" on April 5th), the documents finally were unsealed yesterday.
The documents are embedded below, and there's really not that much there. Basically, the government keeps asking for an extension, insisting that it's in the middle of an important "criminal investigation" and needs more time. It claims, without anything to back this up, that actually doing what the law requires (giving the domain back or filing for forfeiture) would mean alerting those who were being investigated what was up, and might cause them to make a run for it or to destroy evidence. They provide no evidence to support this, and since Dajaz1 was never informed about any of this... they had no chance to refute these ridiculous claims by the government.
The only point that's brought up to explain the delay is in an affidavit from ICE Special Agent Andrew Reynolds, the slightly befuddled recent college grad who was in charge of the original error-riddled investigation, in which he notes repeatedly that the RIAA has not gotten back to him about whether or not their rights have been violated.
A sampling of content obtained from the DAJAZ1.com website and its purported affiliate websites was submitted for rights holder evaluation and has yet to be returned to HS, SAC/LA. Additionally, a representative with the Recording Industry Association of America (RIAA) has stated that he will provide a very comprehensive statement to ICE's and CBP's outstanding questions, in coordination with corresponding rights holders, which will be forthcoming in approximately 30 days.That was Reynolds statement on September 7th, 2011. Remember, thanks to Agent Reynolds, Dajaz1.com was seized on November 24th 2010. So we're talking 10 months later, and he's claiming that the RIAA still hasn't gotten back to him over whether or not the tracks were actually infringing or with answers to ICE's questions?!? And yet, in the original filing, Reynolds stressed the importance of completely taking away and censoring this website as quickly as possible because of all the harm it was causing. Yet, the RIAA gets to wait 10 months and never actually confirm that anyone's rights were violated? Perhaps the RIAA's reticence to respond was because it started discovering that the songs in question were actually handed over by official representatives of the labels or the musicians. Of course, that's no excuse for ICE to continue to hold onto the website in question. Just because they totally screwed up and rushed in to censor, doesn't mean they get to drag their feet in admitting error.
Either way, this is pretty crazy. Basically the documents show that the feds seized first, and then sat around waiting for the RIAA to actually provide evidence.... evidence that appears to have never showed up. As the EFF's Cindy Cohn told Wired:
“Here you have ICE making a seizure, based on the say-so of the record company guys, and getting secret extensions as they wait for their masters, the record companies, for evidence to prosecute,” Cohn said in a telephone interivew. “This is the RIAA controlling a government investigation and holding it up for a year.”Even more troubling, however, is that the repeated requests for extension do not (at all) address the key First Amendment issues about the fact that a news publication was completely shut down based on these accusations. The law is pretty clear that the burden for shutting down a publication is pretty damn high, and nothing in the filings comes anywhere close to meeting that burden. Even worse, the judge in the case, Margaret M. Morrow, just rubber stamps the request allowing them to move forward at will. She does not appear to ask any questions. She does not appear to even be curious about the fact that an entire website was shut down and censored without meeting the clear burden under the law. It's just "request granted," basically.
Not only that, but with the last two extensions, she granted them late. That is, they were both granted after the deadline, by which the government legally had to give back the domain. The first extension needed to be in place by May 15th, and indeed, was granted on May 13th. But after that, perhaps, someone realized that without anyone on the other side even having to know about this, they could take their time. The first extension only went until July 15th. But the second extension wasn't granted until July 18th. Legally that seems to mean that the government illegally held the domain for those three days when it had no right to do so. Similarly, the second extension expired on September 13th. But the judge didn't sign the next extension until September 19th. Again, it would appear that the government was then holding onto property it had no legal right to for about a week after the earlier extension expired.
Either way, for all the promises of a big criminal investigation that was going to turn into a big criminal lawsuit just as soon as the RIAA got back to Special Agent Reynolds, it appears the whole thing fizzled into absolutely nothing, leading the government to quietly hand the domain back to Dajaz1 in December... almost exactly a month after the final extension expired on November 11th. There isn't much enlightening in the unsealed documents other than a pretty clear reminder that the feds seized and censored a website on questionable legal reasoning and then refused to give that website the ability to have its day in court to protest that First Amendment violation.