While the public got reasonably upset about SOPA's overreach, and the possibility that it would be used to shut down websites with no due process, what they miss is that the federal government has been pretending that it already has that right under the last
change to copyright law -- the ProIP Act (not the same as the Protect IP Act, which was the Senate's counterpart to SOPA). The ProIP Act was filled with a ton of bad
ideas. An outcry (much smaller than SOPA) at least stopped some of the very very worst parts of the original ProIP Act from being enacted, but there were still plenty of "easter eggs" from the entertainment industry. One of them was the expansion of "civil forfeiture proceedings," to also cover:
(1) CIVIL FORFEITURE PROCEEDINGS-
(A) The following property is subject to forfeiture to the United States:
' (i) Any copies or phonorecords manufactured, reproduced, distributed, sold, or otherwise used, intended for use, or possessed with intent to use in violation of section 506(a) of title 17, any plates, molds, matrices, masters, tapes, film negatives, or other articles by means of which such copies or phonorecords may be made, and any electronic, mechanical, or other devices for manufacturing, reproducing, or assembling such copies or phonorecords.
`(B) The provisions of chapter 46 relating to civil forfeitures shall extend to any seizure or civil forfeiture under this section.
`(ii) Any property constituting or derived from any proceeds obtained directly or indirectly as a result of a violation of section 506(a) of title 17.
`(iii) Any property used, or intended to be used, to commit or facilitate the commission of a violation of section 506(a) of title 17 that is owned or predominantly controlled by the violator or by a person conspiring with or aiding and abetting the violator in committing the violation, except that property is subject to forfeiture under this clause only if the Government establishes that there was a substantial connection between the property and the violation of section 506(a) of title 17.
This was tucked in at the very end of the bill, and it's almost too clever for its own good. Notice how part (i) talks about "phonorecords" and them being "manufactured" and such. That quickly gets people thinking that this is merely about extending seizure and forfeiture laws to things like CD and DVD burners. In fact, when I asked about this particular section back in 2007, I was told exactly that: that it had little to do with the internet, but was really about seizing disc burners. The only areas where they were talking about the internet was in cases involving hard drives full of infringing material.
The only person I saw actually highlight just how worried people should be about this section was famed copyright legal scholar, William Patry, who explained just how "gluttonous" this move was
by the entertainment industry:
The idea that criminal forfeiture provisions, drafted to reach major drug traffickers like the Columbian cartels, should be inserted into civil copyright tort provisions with a preponderance of the evidence burden, is mind-blowing. The capacity – if not intent – of these provisions for profound mischievousness is obvious: in addition to the gluttonous statutory damages that would be available, content owners now want to defendants to forfeit their computers, their cars, and their homes: all of these can be said to have been used in the commission of infringement (say defendant uses his phone to call someone else involved in the infringement and says “meet me at 11 at Moe’s).
But the bill goes even further: it is not only property actually used that is subject to forfeiture, property that wasn’t used but was “intended to be used” can also be seized. Say, a defendant intended to use his car to transport a computer used in connection with infringement, civil infringement, but decided to take his wife’s car instead. Under the bill, both cars, the computer, and the house where the cars and the computer are stored can be forfeited. But there is more: the bill also includes property “derived from any proceeds obtained directly or indirectly” as result of civil infringement. A television, children’s toy, anything that a defendant owns could fall within this: how could one disprove that any property purchased in the relevant time period was not indirectly derived from infringement. Is even gluttony enough to describe this?
But here's the thing: Patry underestimated
how this would be used. He expected it would be used to harass people by seizing other physical
property. He never imagined that it would be used to censor websites by "seizing" their domains. No one discussed that at all. In retrospect, however, it now seems clear that this was the intent all along. This little section was a big part of why the entertainment industry wanted ProIP so badly -- and it likely put in some of the other ridiculous ideas to throw people off the scent. If so, it worked.
Not long after ProIP was officially signed into law, Immigrations and Customs Enforcement (ICE), a division of Homeland Security, in partnership with the Justice Department, began one of the most shameful operations by the US government: a widespread campaign to seize and censor websites, pointing to this clause as the "legal cover," despite the fact that such censorship is almost certainly a violation of both the 1st and 5th Amendments. Called "Operation in Our Sites," ICE has been seizing (and in some cases forfeiting -- which, in this context, means keeping, as "seizure" is supposed to be a temporary process) website URLs on very little legal basis, without any adversarial hearing -- indeed, without even providing notice to those who own the sites often until weeks or months later. This began in June of 2010, with ICE announcing its first round of illegal seizures directly from Disney's headquarters
, not even trying to hide that they were censoring websites at the urging of Hollywood. As we said at the time, imagine the outcry if the FTC announced Google antitrust charges from Microsoft's headquarters. People would go nuts.
Of course, as we've since learned, the whole process was corrupt. In one case, that of hiphop blog Dajaz1, the Justice Department refused to let the site have its day in court, passing a series of totally secret "extensions" while waiting
for the RIAA to provide "evidence" it never could provide (because it didn't exist). Eventually, after having shut down and censored a publication for over a year
, the government quietly just handed the domain back
without even so much as an apology. To this day, the Justice Department has been dodging
questions about this domain.
And while Dajaz1 gets most of the attention, it's worth remembering that over 700 websites have been illegally censored in this manner, and we don't know how many of them are trying to get their domains back, because the government continues this very secretive process. In fact, from what we do
know, two other websites that were seized in the same round as Dajaz1 and have been trying to get their domains back ever since are still being held hostage
by the government. Yes, these sites have been censored for over a year and a half now.
For all the talk and worries about SOPA, it's important to realize that the thing people were most scared about -- that the law would be used to censor websites the entertainment industry just doesn't like
-- is already a reality, and it came via ProIP and is happening now under the name "Operation In Our Sites."
Last week, a White House petition was set up, calling for the White House to put an end to Operation In Our Sites
. To date, the administration has done everything possible to hide from the fact that it's censoring websites, while playing up claims that it's "stopping piracy." This needs to stop. Signing the petition is one step in making that happen, along with actually holding the White House responsible for the fact that it is censoring and shutting down websites, even while it's telling the rest of the world that they
need to stop censoring the web.
Please pass the story around to others, so that they recognize what's already being done by the US government to censor websites under the guise of copyright law.