DHS relied on bizarre legal reasoning and crappy evidence to seize "pirate" domains

Techdirt's Mike Masnick enumerates the litany of crappy law, evidence, and assumptions behind the Department of Homeland Security's decision to seize a group of music-blog and search-engine domains. The seizures were backed copyright industry lobbyists. The story should scare all of us: if you have a .com or .net domain, the US government is prepared to censor you on the evidence-free say-so of a corporate lobbyist from the copyright cartel.
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 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.

Homeland Security Presents 'Evidence' For Domain Seizures; Proves It Knows Little About The Internet - Or The Law (via /.)


  1. Call me a cynical bastard –

    but are there any amongst us here at BB who aren’t aware that lobbyists aren’t tantamount to nothing less criminal behavior, bribery & thugism?

    This is a subset of why, oh-former-country-of-mine, I’ve expatriated myself from your Chthonic, tentaculous grip.

  2. So what’s the process for dealing with improper warrant of this sort? Is anyone or any agency accountable for these apparent blunders?

  3. Castillo v. Swarski, et al is a case where a plaintiff was able to pursue their case against ICE agents despite their qualified immunity.

    1. To put it simply, the Department of Homeland Security ensures the security of the homeland. That’s not just stopping terrorists at the borders but also protecting property in some situations. They consider piracy to be a form of mass theft; a dramatic reduction in the security of property owned by US citizens.

      You may or may not agree that that should be part of their job but it is a little less arbitrary than big business asking to borrow our expensive shadowy organization as a brute squad.

      1. Ah yes, i need to remind myself that to the powers that be only property ownership have any real value in this world. What are we living in, feudalism?

      2. When they take a list of sites created by the MPAA and seize the domains without doing any investigation, then yes, they are acting as a brute squad.

      3. “To put it simply, the Department of Homeland Security ensures the security of the homeland. That’s not just stopping terrorists at the borders but also protecting property in some situations. They consider piracy to be a form of mass theft; a dramatic reduction in the security of property owned by US citizens.”

        That definition scares me. It scares me a lot. You could fit pretty much any action, up to and including gross civil rights violations, under the rubric of protecting the security of the fatherland–er, homeland.

    1. I guess we should instead trust just out of college Agent Reynolds, then?

      This will be going on for quite a while in the USA, as under Bush a lot of agencies got politicized, with career federal employees getting disgusted and quitting, and ideological hacks burrowing into hard to fire positions. Right now a lot of new hires have that cognitive dissonance of federal employees being parasites and having cushy jobs, and at the same time craving that job security. They secretly idolize the private sector, and are all too willing to do their dirty work.

      Let’s face it, were pretty much screwed. Not entirely, but this is going to be a long, long, battle and we’re going to be exhausted even if we win. But if we win, it will be worth it.

  4. It’s not surprising that when the US government sets out to censor that they censor the “wrong” stuff. It’s only surprising that they were so transparently inept about it.

    Seriously, they’ve left themselves open to a lawsuit here that will have some wise judge send them packing. Whereas if they had done their homework they could go on censoring for decades.

  5. I’m sure *cough* that it was just a one-time error *cough* and could never *cough* happen again *cough* *cough*. No doubt *cough* it was just an honest *cough* mistake and the government will make everything right in the end *cough* *cough* *cough* .

  6. From the techdirt article:

    “Nowhere is there any discussion on how the seizure of domain names has nothing to do with the actual servers.”

    This could be an interesting point. Technically, all they seized were the domain names, not the servers. As I see it, a domain name is essentially a trademark, a unique identifier for a particular “product” (in this case a website). ICE then used those domain names–trademarks–to point to their own servers, the ones hosting the takedown notice page. Essentially, in my thinking, they just applied someone else’s trademark to their product.

    Wouldn’t it be amazing and incredibly ironic if the owners of these websites could sue the DHS for trademark infringement?

  7. Is it just me, or is it a little fishy that someone ‘just out of college’ would be willing to pull something like this? Presumably, both the material pertaining to the legality of this kind of act and the university culture of collaboration (and, yes, piracy) would be fresh in the mind of a recent graduate?

    1. Presumably, he’s new on the job and eager to impress. He has to prove himself. It’s also easier to put pressure on someone like that to cooperate.

      Also, I knew people even in college who were anti-piracy and much more toward the conservative side of this debate.

      Though it does make me wonder, did ICE know that this “evidence” was crap? It seems unusual to have such a low-level newbie writing something so important. They had to know that this was going to be controversial, potentially even history making. Did they have the new kid write it so that he could take the fall? I guess we’ll see how it progresses…

  8. Department of Homeland Security: pardon me but where is the American homeland? I thought that it was a country of immigrants?

  9. I don’t think this is scary, but it is bad behaviour on the part of the DHS. On the face of it, this kind of ‘seizure’ surely goes against at least the spirit of some combination of the fourth, fifth, and sixth amendments to the US constitution.

    However, Cory, I wish you wouldn’t encourage people to feel scared. There’s too much fear in the world as it is and a fearful response will only get in the way of the problem-solving approach we need to take in order to change ill-conceived decisions in the United States government and in industry.

  10. Sadly, it is a common practice in law enforcement to rely on the less qualified agent (new guy) who doesn’t know his shite from shinola. He makes the bust/seizure and then the defendant/accused is stuck trying to convince the judge that the agent acted in bad faith rather than good-faith ignorance. A bad search done in good faith is legit in too many cases. Agent takes the stand at a suppression hearing and argues stupid mumbo-jumbo but the evidence is admitted.

  11. A dozen or so people have forwarded this to me. Weird. I can only assume that the follow-up will be when DHS nails me for pirating my own work.

    1. It’ll be for your own good, didn’t you know that? They’ve only got your best interests at heart. You don’t want to help undermine America, do you?

  12. pretty standard stuff here. lobbyists bribe politicians, politicians do stuff thats bad for everyone but their lobbyist masters and their corporate masters, and then wehn there any uproar they play dumb. this has been and will go on forever

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