Surprise domain seizures by the U.S. Immigration and Customs Enforcement (ICE) are having a chilling effect on freedom on the Web.
By A. Smythe
In yet another nationalistic effort to hold back the floodgates of change in these turbulent times of globalization, for several years the United States government has been running an operation that doesn’t get much attention but ought to: “Operation In Our Sites.” This entity was created by a bill that was passed by congress in the summer of 2010. This innocuous enough sounding program, which seemingly is out to protect the consumer from bad, rip-off Web sites, starts to raise questions when you realize the entity that’s running it is the U.S. Immigration and Customs Enforcement (ICE).
It turns out ICE and “Operation In Our Sites” not only have quite a few chilling implications when you put the two together, but also seems to be yet another underhanded attempt by the United States to try to assert dominance in governing the World Wide Web. When you visit the Operation in Our Sites Web page you are informed that “As a task force, the IPR Center uses the expertise of its member agencies to share information, develop initiatives, coordinate enforcement actions, and conduct investigations related to IP theft.” Well, that sounds like a positive thing. After all, who wants IP Theft? Though one does wonder why the United States government and ICE would be on the beat, rather than a world governing organization. What the IPR site doesn’t mention (which is the key to why this bill is so dangerous, yet managed to slip under the radar), is when Congress passed the bill in the summer of 2010 that approved the creation of the “Operation In Our Sites” initiative, they just happened to sneak in some additional legislation which in the complexity of the bill went largely unobserved.
“This bill not only gives ICE the ability to seize your domain name without much recourse— but it also provides for the U.S. to levy legal charges against non-US citizens.”
According to Andy Sellars, who wrote a detailed paper analyzing the provisions and legality of this bill, what was added was a provision for an enforcement sweep targeted towards websites allegedly dealing in counterfeit goods and copyright-infringing files. In this way, lobbyists for the RIAA and MPAA have managed to find a new long arm of the law to protect their entrenched business models, and try to obstruct new and possibly more effective models that are organically evolving via P2P. In other words, if the government is really so intent on making sure that the United States is a leader in the evolution of the Internet, instead of encouraging that evolution and creating government bodies that would have the foresight to prep U.S. businesses that they must adapt to a changing global business market, they are instead trying to use U.S. enforcement agencies to forcibly lock in the legacy business models of powerful lobbyists.
What’s most worrying is this bill not only gives ICE the ability to seize your domain name without much recourse besides expensive legal battles to try to retrieve it–whether or not it has a single thing to do with “IP Theft”—but it also provides for the U.S. to levy legal charges against non-US citizens. In one of the most recent cases that the Electronic Frontier Foundation (EFF) is battling, the domain names–Rojadirecta.com and Rojadirecta.org, both owned by Spanish company Puerto 80–were seized by ICE as part of the “Operation in Our Sites.” According to the EFF, it appears ICE targeted the sites because they contained links to live sport video streams. However, the domain seizures cut off access to the entire site, including completely legal, non-infringing content, such as the user-created forums, discussions, and technical tutorials. Prior to being shut down by the seizure of their domain by United States’ laws and entities, in Puerto 80’s home country—Spain—the Spanish courts found that Puerto 80 had not violated copyright law. The United States, not satisfied with the Spanish court’s decision, pressed on with its efforts to seize the domains.
The EFF reports that Puerto 80 first tried to work with ICE and other U.S. government authorities to resolve the matter without court involvement, but when that was unsuccessful, petitioned the district court to return the domain names. The judge rejected the request, and so Puerto 80 has an appeal filed with the 2nd U.S. Circuit Court of Appeals, but in the meantime has lost its domains. The EFF filed an amicus brief with the federal appeals court, urging them to return the two domain names seized by the U.S. government, on the grounds that the seizure is in violation of the First Amendment. “Domain name seizures are blunt instruments that cause unacceptable collateral damage to free speech rights,” said EFF Senior Staff Attorney Matt Zimmerman. “Web site operators must have the confidence that government actions ostensibly targeting copyright infringement are undertaken legally. We urge the Court of Appeals to ensure that happens.”
“Web site operators must have confidence that government actions targeting copyright infringement are undertaken legally.”
It is indeed a troubling thought that ICE may without previous redress seize any domain name they judge as being in violation of the “Operation In Our Sites” legislation. In a similar seizure of domain names for sites that streamed sporting media (suspiciously carried out just previous to the Super Bowl), two of the domains, HQ-Streams.com and HQ-Streams.net, were not only seized, but their owner and operator, Mohamed Ali, 19, of Hollis, N.Y., was taken into custody and charged with a single count of criminal copyright infringement. The charge? He made money off his site, and the claim was that the government was taking down the biggest and worst offenders, of which Mr. Ali was supposedly one of the biggest and the baddest. The exorbitant sum that Mr. Ali was supposed to have made annually from operating his site? $6,000.
That any of us might lose our domains or possibly our freedom for operating a Web site which a shadowy U.S. legal entity deems as being in copyright infringement, as the above case illustrates, is all too similar to the cases where the RIAA or MPAA sued teens or little old ladies for hundreds of thousands of dollars for allegedly downloading music or movies. It seems we have arrived at a time when the U.S. government is clearly not representative of the people it governs, who are widely participating in P2P sites, and who are financially supporting the copyright owners in different ways than the mega corporations who represent them would prefer.
“ICE’s domain name seizures, including this one, are occurring without meaningful court oversight, with no chance for the targets to defend themselves before their websites are taken down and a highly cumbersome process for challenge afterwards,” said EFF Intellectual Property Director Corynne McSherry. “The government should stop these seizures until they comply with the law.”