Our FOIA Lawsuit Gets Results: ICE Admits It Didn't Really Seize A Million 'Copyright Infringing' Domains

from the the-case-is-over dept

Earlier this year, we sued ICE over its failure to provide relevant documents in response to a FOIA request we had made late last year. Late last week that lawsuit came to an end, after we agreed to dismiss it after ICE finally handed over the documents we had requested, which should have supplied last year. What we have now learned is that ICE didn't even bother to look in the proper place for the documents, and (not surprisingly) that once they handed over the documents, they reveal that ICE's legally-confused, bragging press release about all the domains it had seized... was not even remotely accurate. Perhaps that's why ICE didn't want to share the details with us or anyone else.

First, a bit of history. For years we've been calling out ICE for the very questionable practice of seizing websites for large companies in response to claims of possible copyright infringement. Indeed, First Amendment case law makes it pretty clear that law enforcement can't shut down an entire bookstore or an entire publication just because there is some possibly illegal content within that publication or store. Yet, ICE seemed over-eager to seize lots of websites and grandstand about it. In following up on those cases, we've shown that ICE made serious mistakes, often relying on claims from industry partners, such as the RIAA, without any actual evidence. This resulted in things like ICE quietly returning a hip hop blog it had seized and held for over a year (including engaging in secret proceedings before a judge that even the site's lawyer was blocked from learning about), admitting that it had no evidence for the seizure. In another case, it returned another hip hop blog five years after seizing it, without ever presenting any evidence for why it seized the site.

So we were confused and amazed last fall when ICE put out a ridiculous press release again hyping up its efforts to seize websites, claiming that over 1 million domains had been seized. The press release was written in a confusing and legally nonsensical manner, frequently confusing the difference between copyright and trademarks -- which is pretty shocking for a supposed law enforcement agency. For example, it talks about seizing "a copyright-infringing website offering counterfeit integrated sensors." Counterfeiting is a trademark issue, not a copyright one.

Because of this, we filed a FOIA request, seeking the list of the "over a million websites" the press release claimed were seized under Operation In Our Sites, and also requested the communications with the various "high-profile industry representatives" that the press release stated helped ICE with these seizures. ICE responded (late) that it couldn't find any such records, despite multiple requests and an appeal, leading us to sue. As we noted during our appeal, it "strains credulity to believe, and it is impossible to accept, that ICE doesn't have a single record related to the names of domains it had just seized."

After many months, ICE has finally explained why it failed to find any records, and provided what records it does have (with some mostly silly redactions). Let's start with the reason why it couldn't find any records. According the declaration of Toni Fuentes, in the ICE FOIA office, they didn't bother to look in the part of ICE that ran the program and issued the press release. ICE is broken up into various "offices" including "the IPR Center" which focuses on intellectual property issues. However, the ICE FOIA office decided that other parts of ICE were the places to look.

Upon receipt of a proper FOIA request, the ICE FOIA Office will identify which program offices, based on their experience and knowledge of ICE’s program offices, within ICE are reasonably likely to possess records responsive to that request, if any, and initiates searches within those program offices. Once the ICE FOIA Office determines the appropriate program offices for a given request, it provides the POCs within each of those program offices with a copy of the FOIA request and instructs them to conduct a search for responsive records. The POCs then review the FOIA request, along with any case-specific instructions that may have been provided, and based on their experience and knowledge of their program office practices and activities, forward the request and instructions to the individual employee(s) or component office(s) within the program office that they believe are reasonably likely to have responsive records, if any....

[....]

The ICE FOIA Office determined that because of the subject matter of Plaintiffs’ FOIA Request, HSI and OPA were the offices likely to have responsive records. The ICE FOIA Office instructed HSI and OPA to conduct a comprehensive search for records and to provide all records located during that search to the ICE FOIA Office for review and processing.

Notice that the IPR Center is not one of the offices searched, even though it was the office that issued the press release in question and is directly named in the press release. OPA makes at least a bit of sense, because it handles ICE's interactions with the media, so would likely have helped in reviewing the press release -- but would be unlikely to have the records we were requesting. HSI handles "investigations" for the Department of Homeland Security, and was mentioned in the press release as helping to take down a single website. After the FOIA office handed off the task to HSI, apparently a few special agents did somewhat random and haphazard searches of their own emails and turned up nothing.

Within C3, one Special Agent conducted a search of his computer and Outlook using the term “IPR” and “ICE IPR Center” based upon the press release provided by the Plaintiffs and his subject matter expertise. No records responsive to the request were located. One Special Agent conducted a search of his computer and Outlook using the terms “seized” and “website” based upon the press release provided by the Plaintiffs and his subject matter expertise. No records responsive to the request were located. One Special Agent conducted a search of Outlook using “Operation In Our Sites” based upon the press release provided by the Plaintiffs and his subject matter expertise. No records responsive to the request were located.

And here's the key part. That last agent suggested that maybe ICE should be asking the IPR Center to respond... but no one did anything about it:

However, this Special Agent did note on the returned search form that he believed the IPR Center may have responsive records. However, the IPR Center was not tasked to conduct a search at this administrative level and on February 19, 2019, the ICE FOIA Office notified the Plaintiffs that no responsive records were located.

Eventually, much, much later, someone finally gave the FOIA request to the "program manager" for Operation In Our Sites within the IPR Center, and that person found 75 pages, which were only given to us months after we sued (amusingly, the Fuentes declaration has some fun with the timelines, in suggesting that the IPR Center was told to do this search long before we sued, and then stops providing dates, such as the fact that they didn't give us these documents until months after we sued. The 75 pages, combined with the Fuentes declaration above, reveal that the ICE press release was a total joke and a complete exaggeration. First off, most of what happened had nothing at all to do with ICE. At best it was taking credit for seizures done by Europol, Interpol and various police agencies, as well as common every day takedown notice sent by various companies, which it appears ICE included in its numbers.

ICE further provided that of the websites that were criminally seized, the majority of them were seized by Europol, Interpol and police agencies from 26 different countries and that these partners did not share the domain names of those websites with ICE. Further, in regard to the remaining domain names, other industry partners were involved in the seizure of those websites and did not provide the domain names of those websites to the IPR Center. Lastly, ICE was not involved with and does not have any records relating to, any court filings relating to the seizure, civilly or criminally, of domain names.

Indeed, despite the press release clearly indicating that ICE was the one filing court cases -- including criminal cases -- to seize these domains, ICE admitted directly to us "ICE wasn't involved in the filing of any court documents."

So, what was included in those 75 pages? What appears to be nothing more than a PR campaign to allow ICE to puff up fake seizures of websites in advance of the press release it wanted to put out in association with Cyber Monday last year. The Program Manager of Operation In Our Sites apparently just emailed a bunch of big name retailers asking for stats:

Good afternoon,

I am sending this email as a reminder that Operation Cyber Monday 2018 will be concluding in a little over a month. I am hoping you can send me your statistic on the number of infringing websites and E-Commerce links that your company has civilly seized/taken down by COB November 16, 2018.

Lumping together "civilly seized/taken down" does a lot of heavy lifting in making this effort seem like a much bigger deal than it is. As the details we'll show below make pretty clear, by asking for "civilly seized" and "taken down" as a single number, ICE gets to pretend that sites were seized using civil seizure procedures (for which there would be legal paperwork), when they're mostly just taken down thanks to standard everyday takedown notices.

The various companies then responded, giving a wide range of results -- most of which appear to just be them getting various e-commerce sites (it appears to mainly be eBay/Alibabba/Amazon and some other market sites) and social media sites to remove links to what they claim are counterfeit products. Amusingly, in some of the emails, "Operation Cyber Monday" is redacted. In others, where it's the exact same email, it is not. Just last week, after we raised questions about a bunch of the redactions, ICE gave us a "supplemental" response, in which it changed some of the reasons for some of the redactions and removed all of the redactions on the phrase "Operation Cyber Monday 2018" which never should have been redacted in the first place.

What remains redacted is mainly who the companies are and which people at the companies are engaged in this effort to shut down websites and e-commerce links. Most rely on either (b)(6) or (b)(7)(c) redactions, both of which are for "unwarranted invasion of the personal privacy" while a few (b)(7)(d) redactions remain. Those are especially odd as that's for disclosing "the identify of a confidential source." It is difficult to see how these individuals should be considered confidential sources.

Also, for what it's worth, while the names of the companies that participated in this charade are technically redacted, with a little sleuthing, it is not that difficult to figure out who most of them are. In digging into the details, we've identified a variety of clothing/footwear/accessory companies, including Chanel, Abercrombie & Fitch, Victoria's Secret, Burberry, Under Armour, and Nike. It is unclear why ICE sought to keep those names secret, except that in the Fuentes declaration, it is admitted that these companies only agreed to participate in this propaganda campaign in exchange for anonymity and that they not be named as partners:

Each of the companies whose name and/or address has been withheld under Exemption 7(D) provided information to ICE to assist in a federal criminal law enforcement investigation under an expressed promise that ICE would not reveal to the public that they participated in this Operation. If released, foreseeable harm would result to both the companies that provided the information under the promise of confidentiality and to ICE, who relies upon the information these companies provide during the course of their law enforcement operations.

This seems highly questionable. We wouldn't go about releasing names of sources that would result in real harm, but it's difficult to see how revealing that Nike or Victoria's Secret have worked with ICE to take down Chinese links selling counterfeit merchandise does any harm to the continued efforts to find and take down counterfeit offerings. It seems the only "harm" would be some level of embarrassment to the companies for teaming up with ICE at a time when many consider ICE to be kind of toxic. But embarrassment to a brand over its associations is not a legitimate reason to withhold their names.

Even more to the point, from everything given to us, the claim that this somehow harms ICE's "law enforcement operations" is equally ridiculous, since ICE admitted that it didn't do any law enforcement operations here. It just asked everyone to tell them what they had gotten taken down so it could hype its own "participation."

As for the claim that over a million sites were seized -- that number seems to come almost entirely from one participant (the one company whose identity we couldn't backtrack, unfortunately), which claimed that it, alone, had been able to get 1,168,543 "unique host site URLs" offline. This company seemed particularly active in taking down sites, but no further details are given:

Indeed, this number is so out of sync with all of the other numbers, that it makes you wonder if the 1 million number is actually unique URLs or if they actually mean something else, like social media links or something. None of the others come anywhere near this number, and many are are just a few hundred or a few thousand links. Without this one unnamed company, there is no "1 million sites" that ICE can claim for itself (despite not doing anything). Also, it is clear that those sites were "taken down" and not "seized."

Nearly all of the other ones show very few websites taken offline, with most of the focus being on e-commerce sites listing counterfeits or social media posts showing the same. So, for example, this appears to be Chanel's list, which had the second most sites taken down at 13,657, though many more market and social media listings:

And here's Abercrombie & Fitch who "submitted" 726 websites.

What appears to be Victoria's Secret reported just 8 websites that it got "removed."

What appears to be Burberry took down just under 600 "infringing websites."

What we believe is Under Armour provided the most detail in their response in taking down 211 websites, though it sounds as though it was mostly just talking to Shopify, which helped them takedown websites offering counterfeit goods, rather than "seizing" the sites as the whole operation press release suggested:

And, finally, what is likely Nike took down just under 2,000 websites and a small number of Facebook and Instagram links but helpfully highlighted how many estimated "followers" it removed. But also the person from Nike "look[s] forward to continuing to work with you and figuring out ways to expand on our current partnership."

All in all, it seems like this is mostly these companies finding counterfeit sellers and getting those links taken down, mostly by going to intermediaries and asking for them to be shut down. That seems mostly reasonable, though there is always the risk of false accusations and legitimate sites and sellers being shut down. However, the key here is that ICE's boastful press release, in which it couldn't tell the difference between copyright and trademark, appeared to a bunch of nonsense, taking credit for the work that these companies had done in asking for various links to be removed -- and hyping it up as if these had been "seized" by the government.

All in all we're glad that ICE finally provided this information, though it shouldn't have required a lawsuit to make it happen. It does seem to show, as we expected, that ICE was exaggerating what was happening, and certainly exaggerating and playing up its own role in these "seizures" (most of which appeared to be takedown requests that ICE had nothing to do with). Special thanks to the team at Cause of Action, a non-profit focused on transparency and accountability in government, for representing us in this litigation.

In the meantime, since we're just weeks away from Cyber Monday 2019, we're curious to see if ICE makes another one of these announcements. At the very least, we hope this year they figure out the difference between copyright and trademark. Even better would be to just come out and admit that what they're exaggerating as some sort of legal/judicial process is really just a bunch of companies sending takedown notices that have nothing to do with ICE. Or, best case, maybe ICE gives it a rest this year. Somehow I doubt it will.

Filed Under: copyright, counterfeits, dhs, domain seizures, foia, ice, ipr center, trademark
Companies: abercrombie & fitch, burberry, chanel, nike, under armour, victoria's secret


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  • icon
    Gary (profile), 30 Oct 2019 @ 9:34am

    FOIA FTW

    Good sleuthing! Now can we sue ICE for "False Advertising?" :)

    Sad that some government agencies can just blabber on at a press release with no regard for the facts.

    https://www.theguardian.com/us-news/2019/oct/04/as-trumps-lies-reach-new-heights-have-the-med ia-reached-a-tipping-point

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Oct 2019 @ 9:59am

    For that one that you couldn't ID, there's not much to go on but the signature and title vaguely remind me of a rights management company - something like MarkMonitor.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Oct 2019 @ 11:38am

      Re:

      Interesting... my thought was that the wording could have been from a company such as Amazon. And that list of Amazon Marketplace and unique URLs could not only overlap with each other, but a large number of the takedowns from the other companies could also be included, this being URLs taken down by Amazon at the request of the other companies.

      reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Oct 2019 @ 10:08am

    Well you seem to have accomplished your mission, so good. More info is always a better thing.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Oct 2019 @ 10:20am

    it makes you wonder if the 1 million number is actually unique URLs or if they actually mean something else, like social media links or something. … Without this one unnamed company, there is no "1 million sites" that ICE can claim for itself

    URLs are easy to come by. Here are some "unique site URLs" for this article:

    Repeat with "http" instead of "https" to double the number.

    None of those are "sites", but a web crawler could easily find a million Techdirt URLs.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Oct 2019 @ 10:26am

    Well, the exaggeration is better than the other possibility of they had 1 million websites of taxpayer funded processing to do before they had to give a large number back. That was the other likely possible outcome.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Oct 2019 @ 12:11pm

    Counting for government employees

    So is this how the government get's to claim high arrest rates as well... a person with 5 known aliases counts as 5 arrests? a person with 12 aliases counts as 12? so if a person is only known by one name they only count as one... maybe that's why there's some compulsion to give someone nefarious some kind of title... Nick the nab, Nikky the naughty and Nick were arrested today; there were 3 arrests and one person in jail... sheesh.

    That's what's going on here with 'websites'... except that in the case of 'taking down a unique host url' could in fact leave the main domain intact... ...
    You don't get to say that you've taken down a site unless that's site is actually and truely taken offline... ... removing some of it's pages doesn't count... I don't get to take down wikipedia and claim I've taken down several million(billion) websites simply because the URLs all say page not found...

    This is what happens when you rely on metrics without understanding what the data is actually telling you (hint: not everything is constantly growing at an increasing rate... really)

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Oct 2019 @ 2:38pm

      Re: Counting for government employees

      no, the government really does arrest crap-tons of people. reasons for doing so are frequently thin on the ground, however.

      (as an aside, how do we have a verb with a posessive s?)

      reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 30 Oct 2019 @ 5:08pm

      Re: Counting for government employees

      Example 1:

      an incident in the Rio Grande Valley Sector on February 14, 2017, involved seven U.S. Border Patrol Agents assaulted by six subjects utilizing three different types of projectiles (rocks, bottles, and tree branches), totaling 126 assaults.

      According to the FBI, most Border Patrol agents for whom assault data has been publicly reported were not injured. Rocks and water bottles don’t always hit their mark. Or they are never thrown in the first place — for reporting purposes, apparently, the mere brandishing of an object constitutes assault.

      Example 2:
      DOJ+DHS:

      immigrants were convicted of almost 70,000 sex offenses from 2003 to 2009.

      Reality:

      The nearly 70,000 offenses spanned a period from 1955 to 2010 — 55 years, not six; the data covered arrests, not convictions

      reply to this | link to this | view in chronology ]

      • icon
        ECA (profile), 30 Oct 2019 @ 7:53pm

        Re: Re: Counting for government employees

        ICE removed or returned 258,085 aliens in fiscal year 2018. ERO arrested 158,581 aliens, 90 percent of whom had criminal convictions, pending criminal charges, or previously issued final orders. The overall arrest figure represents an 11 percent increase over fiscal year 2017.

        LOVE the numbers...how many Canadians??
        Is Shatner still around??

        reply to this | link to this | view in chronology ]

      • icon
        That One Guy (profile), 31 Oct 2019 @ 12:06am

        You hold a rock, that's assault. They hold a gun, that's SOP

        Or they are never thrown in the first place — for reporting purposes, apparently, the mere brandishing of an object constitutes assault.

        Except of course, as I noted when TD covered that little instance of 'creative math', when their side is the one doing the 'brandishing'...

        reply to this | link to this | view in chronology ]

  • icon
    norahc (profile), 30 Oct 2019 @ 12:50pm

    You can damn well bet id the government was looking for the information requested as part of an investigation, they wouldn't have missed a single item in the scope of their search.

    reply to this | link to this | view in chronology ]

  • This comment has been flagged by the community. Click here to show it
    identicon
    Anonymous Coward, 30 Oct 2019 @ 7:10pm

    tl;dr

    but wow does

    Mike Masnick ever hate it when copyright law is enforced.

    reply to this | link to this | view in chronology ]

    • identicon
      Anonymous Coward, 30 Oct 2019 @ 7:50pm

      Re:

      Copyright law wasn't even enforced here. Counterfeiting physical products is a trademark issue.

      Seriously, why do you fucknuggets feel the need to lie so hard about your enforcement processes if you're that on the up-and-up?

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 30 Oct 2019 @ 10:03pm

        Re: Re:

        Same reason why these idiots claim supermarkets would cease to exist without intellectual property law, and why game developers use the DMCA and copyright law to "notice and staydown" YouTube videos criticizing their products.

        Lying to jack up their numbers, even when there is no obvious or clear benefit, is par for the course when it comes to IP enforcement.

        The MPAA claimed that 45% of all students pirated movies, then privately admitted it was more like 15%. But the number was parroted in all their materials. Nobody would equate Chinese knockoff handbags with downloading a Metallica song but jacking things up to "one million" make it sound like the ICE is doing their job.

        ICE going out of their way to obfuscate the department who was in charge of these copyright-based initiatives, though... now that was pointless. It's one thing to say that in a large organization you can't expect the left hand to know what the right hand is doing. Here we have a case of ICE claiming that they don't know what their right hand is doing, and their response is to follow up with a colonic irrigation and amputation of the left leg.

        Well, short of the mainstream media picking this up, at least we have an answer to out_of_the_blue if he wants to start bragging about all the "pirates" his team is catching.

        reply to this | link to this | view in chronology ]

    • icon
      Toom1275 (profile), 30 Oct 2019 @ 8:36pm

      Re:

      [Asserts facts not in evidence]

      reply to this | link to this | view in chronology ]

  • icon
    ECA (profile), 30 Oct 2019 @ 7:56pm

    DHS/ICE and .....????

    How many agencies are now responsible for the borders??
    Anyone think that using the "No mans, land" north and South of the USA as a bombing test range... Love those canadians..

    reply to this | link to this | view in chronology ]

  • icon
    Bergman (profile), 31 Oct 2019 @ 2:05am

    ICE didn't even bother to look in the proper place?

    I wonder how the government would react if a company or individual used that excuse? "Oh, I'm sorry, I can't comply with your subpoena because I can't find any documents that are responsive to it."

    Heads would roll. But because the feds did it, nobody gets in any trouble.

    reply to this | link to this | view in chronology ]

  • identicon
    Agammamon, 31 Oct 2019 @ 1:27pm

    Here's what I don't get about all this 'we seized a copyright-infringer website/counterfeit importer' boasting they do.

    Do they not understand that we don't care?

    Now, I can understand that they do this because they're amoral bastards who will do whatever they're told for a steady paycheck. But then you'd think you'd just report to your paymasters that you've done their bidding.

    Because when you crow about this shit to the public, the best response you'll get is apathy. Basically no one cares. And the few people who do? They're the ones opposed to what you're doing.

    They're the ones that are going to FOIA your arse or just point out that the Twitter pic you posted showing all the cash you seized in that 'massive drug raid' is actually about one hundred dollars worth of one dollar bill and not exactly a 'massive drug operation'.

    The only thing I can conclude is that these people are deluded because they remain out of touch with the society they prey upon.

    reply to this | link to this | view in chronology ]

    • icon
      PaulT (profile), 1 Nov 2019 @ 1:43am

      Re:

      "Do they not understand that we don't care?"

      Apparently not. What they forget is the whole "supply and demand". The physical counterfeiters (which seems to be what this is about) would not bother unless there was a market. There's a market because people want designer goods, and their budget does not allow them to buy the real thing. People don't care that big names might get less money because of counterfeiters, and it's arguable not happening because few people who can actually afford the real thing are going to buy from the dodgy sources in the first place.

      The activity is illegal, and I get why enforcement is happening, but it will continue to be a game that is never won so long as people lack the funds to buy the real expensive goods, which is always.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 1 Nov 2019 @ 9:39am

        Re: Re:

        Most of the "counterfeiters" I came across when I worked at a hosting provider could better be classified as "knock-offs." There were a few of them that were full-on counterfeits, where they used the logo and everything. Generally in those cases though, we received court orders to take down the site because the brands had already filed the lawsuit and gotten default judgments. For the other sites though that just got takedown notices, they generally didn't use any of the original brand's trademarks and were very clear that the items were replicas - which as far as I understand is legal under trademark law.

        Not that it mattered to the companies that made the originals, though.

        reply to this | link to this | view in chronology ]

        • icon
          PaulT (profile), 3 Nov 2019 @ 6:16am

          Re: Re: Re:

          "Most of the "counterfeiters" I came across when I worked at a hosting provider could better be classified as "knock-offs.""

          Well, this is also a good point. Counterfeit suggests that there's an intention to fool people into thinking it's a real thing, but plenty of people have no problem buying an "Asidas" product that looks similar from a distance.

          It doesn't make any difference in terms of trademark law from what I understand, but in reality there really is a difference between someone getting a fake product when they expected a genuine article, and people knowingly buying a knock off because they can't afford the real one.

          reply to this | link to this | view in chronology ]


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