US Senator Worries Domain Seizures May Stifle Free Speech

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Following on from news of the third phase of 'piracy' and counterfeit related domain seizures in 7 months, US Senator Ron Wyden has asked the director of Homeland Security’s Immigration and Customs Enforcement (ICE) to clarify some of the most pressing questions. If the domain seizures are to continue, the Obama administration has to be more open about the need for them and the process involved, he argues.

Earlier this week we broke the news that US authorities had started a third round of domain seizures. This time, it turned out that the actions were aimed at sports streaming sites. In total, 10 domain names belonging to 6 websites were handed over to the authorities.

As with previous seizures, the actions of the authorities were met with disbelief by the sites’ owners and their millions of visitors. The owner of Rojadirecta, one of the affected sites, questioned the legitimacy of the seizure since his site has twice been declared legal in Spain. In addition, many further questions were raised.

Today, we learned a little bit more about the justifications for the “Super Bowl Crackdown” after we obtained the affidavit that ICE agent Daniel Brazier sent to the US District Court. However, the request for a seizure warrant is very generic and leaves many questions unanswered.

Luckily, we’re not the only ones who want to find out more about the lack of due process and the need for domain seizures that comply with the DMCA. US Senator Ron Wyden asks the same questions.

In a letter addressed to ICE director John Morton he voiced his concerns, stating that the seizures are “alarmingly unprecedented” and that they could “stifle constitutionally protected speech.” In addition, Senator Wyden asks the following.

1. How does ICE and DoJ measure the effectiveness of Operation In our Sites and domain seizures more broadly — how does the government measure the benefits and costs of seizing domain names?

2. Of the nearly 100 domain names seized by the Obama Administration over the last 9 months, how many prosecutions were initiated, how many indictments obtained, and how were the operators of these domain names provided due process?

3. What is the process for selecting a domain name for seizure and, specifically, what criteria are used?

a. Does the Administration make any distinction between domain names that are operated overseas and those that are operated in the U.S.

b. Does the Administration consider whether a domain name operated overseas is in compliance with the domestic law from which the domain name is operated?

c. What standard does the Administration use to ensure that domains are not seized that also facilitate legitimate speech?

d. What standards does ICE use to ensure that it does not seize the domain names of websites the legal status of which could be subject to legitimate debate in a U.S. court of law; how does ICE ensure that seizures target on the true “bad actors?”

4. Does the Administration believe that hyperlinks to domain names that offer downloadable infringing content represent a distribution of infringing content, or do they represent speech?

5. Does the Administration believe that websites that facilitate discussion about where to find infringing content on the Internet represents speech or the distribution of infringed content? What if the discussion on these websites includes hyperlinks to websites that offer downloadable, infringing content?

6. What standard does DoJ expect foreign countries to use when determining whether to seize a domain name controlled in the U.S. for copyright infringement?

7. Did DoJ and ICE take into account the legality of before it seized its domain name? If so, did DoJ and ICE consult with the Department of State or the United States Trade Representative before seizing this site in order to consider how doing so is consistent with U.S. foreign policy and commercial objectives

8. In an affidavit written by Special Agent Andrew Reynolds, he uses his ability to download four specific songs on the domain name as justification for seizure of this domain name. According to press accounts, the songs in question were legally provided to the operator of the domain name for the purpose of distribution. Please explain the Administration’s justification for continued seizure of this domain name and its rationale for not providing this domain name operator, and others, due process.

9. Can you please provide to me a list of all the domain names seized by the Obama Administration since January of 2009 and provide the basis for their seizure?

10. Do ICE and DoJ keep a record of who meets with federal law enforcement about particular domain names? If not, would you consider keeping such a record and making it publicly available, to ensure transparency in government and that Operation in our Sites is not used to create competitive advantages in the marketplace?

The questions above cover most of the concerns that were raised among the public, and it will be very interesting to see how ICE’s director responds. Last time he responded to the domain seizures, Morton made quite a few mistakes, so we hope this time around the answers will be more substantial and honest.


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