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.

Filed Under: domain seizures, foia, ice, operation in our sites, records, transparency

Reader Comments

The First Word

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  1. icon
    Mason Wheeler (profile), 24 May 2019 @ 7:23am

    Re: Re: 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.

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