May 23, 2018

Super Bust: Due Process and Domain Name Seizure

With the same made-for PR timing that prompted a previous seizure of domain names just before shopping’s “Cyber Monday,” Immigration and Customs Enforcement struck again, this time days before the Super Bowl, against “10 websites that illegally streamed live sporting telecasts and pay-per-view events over the Internet.” ICE executed seizure warrants against the 10, ATDHE.NET, CHANNELSURFING.NET, HQ-STREAMS.COM, HQSTREAMS.NET, FIRSTROW.NET, ILEMI.COM, IILEMI.COM, IILEMII.COM, ROJADIRECTA.ORG and ROJADIRECTA.COM, by demanding that registries redirect nameserver requests for the domains to 74.81.170.110, where a colorful “This domain name has been seized by ICE” graphic is displayed.

This domain name has been seized

As in a previous round of seizures, these warrants were issued ex parte, without the participation of the owners of the domain names or the websites operating there. And, as in the previous rounds, there are questions about the propriety of the shutdowns. One of the sites whose domain was seized was Spanish site rojadirecta.com / rojadirecta.org, a linking site that had previously defeated copyright infringement claims in Madrid, its home jurisdiction. There, it prevailed on arguments that it did not host infringing material, but provided links to software and streams elsewhere on the Internet. Senator Ron Wyden has questioned the seizures, saying he “worr[ies] that domain name seizures could function as a means for end-running the normal legal process in order to target websites that may prevail in full court.”

According to ICE, the domains were subject to civil forfeiture under 18 U.S.C. § 2323(a), for “for illegally distributing copyrighted sporting events,” and seizure under § 981. That raises procedural problems, however: when the magistrate gets the request for seizure warrant, he or she hears only one side — the prosecutor’s. Without any opposing counsel, the judge is unlikely to learn whether the accused sites are general-purpose search engines or hosting sites for user-posted material, or sites providing or encouraging infringement. (Google, for example, has gotten many complaints from the NFL requesting the removal of links — should their domains be seized too?)

Now I don’t want to judge one way or the other based on limited evidence. Chilling Effects has DMCA takedown demands from several parties demanding that Google remove from its search index pages on some of these sites — complaints that are themselves one-side’s allegation of infringement.

What I’d like to see instead is due process for the accused before domain names are seized and sites disrupted. I’d like to know that the magistrate judge saw an accurate affidavit, and reviewed it with enough expertise to distinguish the location of complained-of material and the responsibility the site’s owners bear for it: the difference between direct, contributory, vicarious, and inducement of copyright infringement (for any of which a site-owner might be held liable, in appropriate circumstances) and innocent or protected activity. As Joe Hall has written here, domain names can’t defend themselves.

In the best case, the accused gets evidence of the case against him or her and the opportunity to challenge it. We tend to believe that the adversarial process, judgment after argument between the parties with the most direct interests in the matter, best and most fairly approaches the truth. These seizures, however, are conducted ex parte, with only the government agent presenting evidence supporting a seizure warrant. (We might ask why: a domain name cannot disappear or flee the jurisdiction if the accused is notified — the companies running the .com, .net, and .org registries where these were seized have shown no inclination to move or disregard US court orders, while if the name stops resolving, that’s the same resolution ICE seeks by force.)

If seizures must be made on ex parte affidavits, the magistrate judges should feel free to question the affiants and the evidence presented to them and to call upon experts or amici to brief the issues. In their review, magistrates should beware that a misfired seizure can cause irreparable injury to lawfully operating site-operators, innovators, and independent artists using sites for authorized promotion of their own materials.

I’d like to compile a set of public recommendations to the magistrate judges who might be confronted with these search warrants in the future, if ICE’s “Operation In Our Sites” continues. This would include verifying that the alleged infringements are the intended purpose of the domain name use, not merely a small proportion of a lawful general-use site.

Comments

  1. Anonymous says:

    I see these pages here in Europe as well. Which brings to mind the old idea of alternative dns roots. Right now, as I understand it, my name server is through O2, and they cache a copy of DNS registries which they get from ICANN(do I understand this right?). But I/we/anonymous could create a new name server, which also copied off ICANN, and thus circumvent this weird legal authority that the US government seems to have over the “whole world”…

    This is more scary than you have made it seem. Because I, as a european, have NO POWER politically over our overlords on the other side of the pond. Yet they, in doing this, have power over me…

  2. Anonymous says:

    Under further investigation. Common web pages that give cached “whois” results allow me to circumvent these pathetic measures by finding the acutal IP address… http://www.indeep76.com/rojadirecta.com/

  3. And domains that are only used for malware/spam are still operational.

    It feels good to know that Mr Noone protects us from those who abuse the system.

  4. Steve Roosa says:

    These essentially “in rem” actions are an ugly business, designed to divest the citizenry of their due process rights. They are like dead canaries in the mine, warning us that the rights we hold dear are under attack.

  5. Anonymous says:

    In so many cases, it appears that judges believe anything said by big business and almost nothing by individuals.

    I was thinking earlier that perhaps many judges are well versed in the law, but woefully (and deliberately) ignorant of everything else (especially technology), but signing off on these seizures seems to suggest something else is in play here. Did Homeland Security shop these warrants round many judges until they found a compliant judge, or would most judges sign off on such doubtful assertions made by HS without meaningful inquiry?

  6. Are US courts the only ones, because .com, .net and .org are effectively subdomains of .us? Or can any country where the registrar for a particular domain does business get in on the act?

    • Good question: I imagine that other countries will follow the US lead and stretch their jurisdictional assertions. If the registrar is located in another country, it might feel pressure there. And conversely, users of ccTLDs (.co, .ly) should realize those are country-code registries based elsewhere (Colombia and Libya, respectively — and Libya has different ideas about permitted speech than the US).

      • Oh, damn. So much for my dreams of constructing a giant porn empire centered on a site called “fuck.me.slow.ly” …

  7. Anony-m-furi-ous says:

    Sweet… based on this precidence I should have a watertight case against MacDonalds for making me a stupid fat hobbit.

    Until such time as my ludicrous claim can be successfully thrown out of court, everyone on the planet is hereby barred from passing under a ‘golden arch’.

  8. Easy solution-don’t do business with US registrars. Better yet, run your own.

    • Wendy’s comment above explains why non-US registrars are not necessarily a solution. Can you give an example of a TLD that you think is a sure bet?

      How do you propose to run your own registrar? Do you think that you could convince ICANN to add a new gTLD for you?

      In any case, you probably want a .com, and that is controlled by Verisign in the US.

  9. I just saw this:
    http://news.cnet.com/8301-31921_3-20030809-281.html

    The Obama administration is quietly seeking the power for it and other governments to veto future top-level domain names, a move that raises questions about free expression, national sovereignty, and the role of states in shaping the future of the Internet.

  10. Easy solution-don’t do business with US registrars. Better yet, run your own