Homeland Security Presents 'Evidence' For Domain Seizures; Clueless About Internet

rtsy · Dec 21, 2010

This is exactly why I volunteer to pay extra taxes. I know putting my life into the government's hands will make everything super. The evil rich must pay for these wonderful benefits too gosh darn it.

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Homeland Security Presents 'Evidence' For Domain Seizures; Proves It Knows Little About The Internet - Or The Law

from the holy-crap dept

Earlier this week, we noted how the owners of the various hiphop blogs and Torrent-Finder, the torrent search engine, that were seized by Homeland Security's Immigration and Customs Enforcement (ICE) group still hadn't been provided the details on why their domains were seized. However, that's no longer the case. A partial affidavit and the seizure warrant for those sites has been released, and it highlights how ridiculously clueless Homeland Security is on this issue (you can read the whole thing at the bottom of this post). What's troubling isn't just that the folks who made the decision to seize these domain names don't seem to know what they're talking about, but that they seem to have relied almost exclusively on the MPAA for their (lack of) knowledge on the subject at hand.

It looks like the four blog/forum sites (RapGodFathers, OnSmash, Dajaz1 and RMX4U) and Torrent-Finder were all lumped together into a single warrant and affidavit. The affidavit was written by a Special Agent with ICE, named Andrew Reynolds, who indicates in the affidavit that he only recently graduated from college (he notes that he's only been on the job for one year, but before that he was a "student trainee with the group"). Much of the affidavit relies heavily on the MPAA. This fits with what ICE assistant deputy director Erik Barnett said soon after the seizures, admitting that they basically just took what sites Hollywood said were a problem and seized them.

In this case, Mr. Reynolds repeats the debunked stats the MPAA has given out concerning "losses" to Hollywood, including the claim of "domino effects" of piracy -- a claim that has been debunked so many times it's getting stale. The "domino" effects are really all about double, triple and quadruple counting the same dollars -- and, perhaps more importantly, they only look at the domino effect (they usually call it a "ripple effect") in one direction, ignoring the fact that money not spent on movies still gets spent elsewhere (potentially boosting those other industries). That doesn't mean that it's okay to not pay for movies -- but it means that claiming some massive economic "harm" here is misleading at best. Even the GAO -- from the same government Agent Reynolds works for -- has debunked the MPAA's stats, in part because the MPAA refused to explain how it came up with those numbers.

Most of the reasoning behind seizing the blogs is left out of the released document, but the entire section on Torrent-Finder is there, and the level of confusion by Mr. Reynolds is worrisome. First of all, he calls it a "linking" and a "bit torrent website." Earlier in the affidavit, these terms are defined loosely -- without any indication of the unsettled nature of the legal question concerning whether or not simply linking to potentially infringing content is, itself, infringing. Instead, it's simply assumed that linking is not just infringement, but potentially criminal infringement. That's scary. And wrong.

Meanwhile, a "bit torrent website" is defined is a "website through which illegal copies of movies and television shows are shared and transferred." The problem here, of course, is that Torrent-Finder is not, in fact, a "bit torrent website." It hosts no tracker. It hosts no infringing content. It's a search engine. That distinction is entirely ignored. In fact, Agent Reynolds appears to blame Torrent-Finder for anything it finds as a search engine. Anyone at any search engine (or who understands how the internet works) should be horrified by this. It's like saying that Google is liable for everything and anything that people can find by doing a search on Google. Think about that for a second.

From there, it gets even more ridiculous. As part of Agent Reynold's argument as to why Torrent-Finder is liable he points to a series of posts by the Torrent-Finder Admin in the site's forums. Specifically, he names the following:

I was able to view several posts by the user "Torrent Finder," including "Top 10 Most Pirated Movies on BitTorrent," "Piracy in the Music Industry," "Piracy Can Boost Book Sales Tremendously," "The First Episode of 'The Walking Dead' Leaks to BitTorrent," and "Piracy domain siezure bill gains support."

Agent Reynolds helpfully provides some of these "posts" in the exhibit. And therein we discover a serious problem. The exhibit shows a page from TorrentFreak.com, the popular blog (who we link to quite often) doing its weekly research report -- and not Torrent-Finder. In fact, if you do searches on those "posts" that Agent Reynolds claims are by Torrent-Finder, you quickly discover that a few are blog posts on TorrentFreak, one is a post from ZeroPaid and the last one is a story at CNET's News.com by Declan McCullough.

In other words, the "support" that Agent Reynolds provides for why Torrent-Finder's domain should be seized is that he claims that Torrent-Finder's admin linked directly to infringing material. But that's not true. Instead, the admin was simply pointing to a bunch of different news stories. Even worse, some of those news stories highlight why the claims of the MPAA, which Agent Reynolds relies upon, are simply made up -- such as TorrentFreak's story about comic artist Steve Lieber (which was actually based on a Techdirt story about how Steve Lieber embraced the so-called "pirates" and ended up making a lot more money -- we later interviewed Steve about his experiences). The CNET article is all about the COICA law -- which is about the legality of seizures like this one. How is that evidence of probable cause?

Even going beyond the fact that Agent Reynolds can't seem to figure out that a search engine is different than a torrent tracker or a torrent hosting site, he also seems to think that linking to blog posts like the ones we write here is probable cause for criminal behavior. Holy crap! That's just downright scary.

The entirety of the evidence against Torrent Finder appears to be that because you could do a search that takes you to another site and because the site's admin linked to some blog posts that discuss -- but do not encourage -- the state of file sharing, that there is probable cause of criminal behavior and your domain can and should be seized without any adversarial trial.

Agent Reynolds' cluelessness in the matter is compounded by the fact that it appears the only folks outside of ICE that he spoke to about what he was doing were at the MPAA itself -- which is hardly an unbiased party. It would be like investigating whether or not an upstart bank was committing fraud, by only talking to a large banking competitor. Who would think that's appropriate? Apparently Agent Reynolds and his bosses at ICE.

Equally troubling is that magistrate judge Margaret Nagle signed off on the warrants (literally, with a rubber stamp) without questioning any of this, from the look of things. Nowhere is there any discussion on how the seizure of domain names has nothing to do with the actual servers. Nowhere is there any discussion about first amendment issues in seizing domain names. Nowhere is there any discussion about prior restraint. Nowhere is there any discussion about the difference between a search engine and a torrent tracker. Nowhere is there any discussion about the difference between an infringing file and a torrent. Nowhere is there any discussion about the difference between a link to a news blog post about current events and encouraging people to download infringing content.

I thought the whole thing was ridiculous before. But now that I've read the affidavit -- at least the part about Torrent Finder -- it's become clear that this is a colossal screwup on the part of Homeland Security, ICE and the US government, based on a freshly minted ICE agent who doesn't seem to understand the technology, being lead around by the nose by MPAA staff with an agenda.

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http://www.techdirt.com/articles/20...es-it-knows-little-about-internet---law.shtml

Northside Storm · Dec 21, 2010

---I rather think this is an example of corporate cronyism gone wrong.

The MPAA and RIAA trying to pull strings.

Still, when it comes to government, of which I don't like very much, Homeland Security is one area I wouldn't mind getting cut down in size. This whole preoccupation with terrorism has led to some crazy provisional powers and exceptions and the burgeoning budgeting requests that come with all that.

Rashmon · Dec 21, 2010

A little more balanced reporting with less histrionics...

Piracy Domain Seizure Bill Gains Momentum

A proposed law allowing the government to pull the plug on Web sites accused of aiding piracy received a sizable political boost yesterday.

Dozens of the largest content companies, including video game maker Activision, media firms NBC Universal and Viacom, and the Motion Picture Association of America (MPAA) and Recording Industry Association of America (RIAA) endorsed the bill in a letter to the U.S. Senate. So did Major League Baseball and the U.S. Chamber of Commerce.

The letter to Sen. Patrick Leahy, a Vermont Democrat and co-sponsor of the bill, said new laws are needed to curb access to increasingly sophisticated "rogue Web sites" that "undermine the growth and stability of many industries and the American jobs that they support." The legislation should be enacted "during the time remaining" this year, meaning after the Democratic-controlled Congress returns in November, the letter says.

The proposal is not uncontroversial: Since its introduction a few weeks ago, the idea has alarmed engineers and civil liberties groups, who say that it could balkanize the Internet, jeopardize free speech rights, and endanger even some legitimate Web pages that are part of larger sites. According to its current wording, any domain name "dedicated to infringing activities" could find itself in the U.S. Department of Justice's prosecutorial crosshairs.

"We feel that this bill addresses the worst of the worst," MPAA VP Howard Gantman told CNET yesterday. "It's focused on Web sites that are engaged in promoting illegal activity and there needs to be something done about it."

The bill, known as COICA for Combating Online Infringement and Counterfeits Act, doesn't authorize the Feds to shut down allegedly infringing sites directly. Rather, the Justice Department would seize the Web site's domain name and require any credit card or bank with U.S. operations to cease doing business with the accused pirate.

Someone who knows the Internet Protocol address--the IP address for cnet.com, for instance, is currently 216.239.122.102--would still be able to connect to the Web site even if the computer that normally translates a domain name into its numeric address pretends not to know it.

If all copyright-infringing and trademark Web sites were hosted in the United States with their Webmasters living on U.S. soil, Leahy's COICA would be largely unnecessary. A straightforward copyright lawsuit of the sort that the RIAA and the software industry have spent years perfecting would suffice.

But that's not the case. Sites like the Russia-hosted MP3Sparks.com are accessible around the world, even though they almost certainly violate U.S. copyright law. ThePirateBay.org in Sweden has not only survived what seem like innumerable attempts to shut it down, but its operators take special pains to mock copyright lawyers who write cease-and-desist letters meant to be both earnest and threatening.

A Web site is in danger of having its domain seized (or having U.S. Internet providers encounter a sudden case of amnesia when their customers try to visit it) if it is "primarily designed" and "has no demonstrable, commercially significant purpose or use other than" offering or providing access to unauthorized copies of copyrighted works. Counterfeit trademarks--that's why Chanel, Nike, Tiffany, and LVMH Moet Hennessy Louis Vuitton also signed the letter--are also included.

That wording is significant. Because the phrase "providing access" appears, that would sweep in speciality search engines including The Pirate Bay that provide links to copyrighted works, even if the actual BitTorrent streams are hosted elsewhere.

If the Leahy bill, co-sponsored by Orrin Hatch (R-Utah), becomes law, domain name registries such as Verisign, which owns the rights to .com, .net, .tv, .cc, and others would find themselves under new and uncomfortable legal pressure. The .org registry has been run by the Public Interest Registry since 2003.

But registries for top-level domains in other countries would remain unaffected, and The Pirate Bay, perhaps as a precautionary measure, already owns thepiratebay.se. Americans interested in free (if illegal) downloads could simply switch to that or visit the IP address at http://194.71.107.15, a workaround indicating that this congressional effort might accomplish rather less than its backers would like.

For civil liberties groups, the bigger problem is that curbing access to a Web site because of some infringing material raises First Amendment problems. The Center for Democracy and Technology has published a six-page analysis (PDF) saying the bill would "set dangerous precedents with serious consequences for free expression, global Internet freedom, and the Internet's open and global architecture." Internet engineers have raised separate concerns.

To content producers, and their allies among large trademark holders, there's no time to spare. The U.S. and other countries in the World Trade Organization already have "agreed in a binding international instrument to take action against counterfeiting and piracy on a commercial scale," the letter says. "This legislation simply advances that goal, and should in no way be used by other countries as a pretext to support censorship that takes place outside agreed upon principles of international law."

They're pressing for a vote before the new Congress convenes in early 2011, perhaps because of concern that the election could tilt one or both chambers toward Republican control and make enactment of COICA less likely. One possible vehicle is an appropriations bill to fund the federal government for the next 10 months; that debate will resume under Democratic leadership by the time a temporary funding measure expires on December 3.

Over the years, this approach has been a favorite way for Congress to enact laws that might not have otherwise have survived strict legislative scrutiny. The Real ID Act, a domain name tax, a school-and-library filtering requirement, and an anti-Internet p*rn measure were all enacted as part of unrelated government spending bills, usually at the end of the calendar year.

So why the rush? Republicans may be--it's a little hard to predict--more skeptical about the need for COICA, even if it has been endorsed by the U.S. Chamber of Commerce. Remember, President Bush threatened to veto an MPAA- and RIAA-backed bill that would let federal prosecutors file civil lawsuits against peer-to-peer pirates.

Contrast that with President Obama's choice of RIAA lawyers for senior posts. And Vice President Joe Biden recently put content industry hearts a-flutter when proclaiming: "Piracy is theft. Clean and simple. It's smash and grab." The MPAA couldn't have put it any better itself.

Read more: http://news.cnet.com/8301-13578_3-20020408-38.html#ixzz18lQbLLUV

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Homeland Security Presents 'Evidence' For Domain Seizures; Clueless About Internet

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