Posted on 12/11/2011 5:56:42 AM PST by JerseyHighlander
Imagine if the US government, with no notice or warning, raided a small but popular magazine's offices over a Thanksgiving weekend, seized the company's printing presses, and told the world that the magazine was a criminal enterprise with a giant banner on their building. Then imagine that it never arrested anyone, never let a trial happen, and filed everything about the case under seal, not even letting the magazine's lawyers talk to the judge presiding over the case. And it continued to deny any due process at all for over a year, before finally just handing everything back to the magazine and pretending nothing happened. I expect most people would be outraged. I expect that nearly all of you would say that's a classic case of prior restraint, a massive First Amendment violation, and exactly the kind of thing that does not, or should not, happen in the United States.
But, in a story that's been in the making for over a year, and which we're exposing to the public for the first time now, this is exactly the scenario that has played out over the past year -- with the only difference being that, rather than "a printing press" and a "magazine," the story involved "a domain" and a "blog."
There are so many things about this story that are crazy, it's difficult to know where to start, so let's give the most important point first: The US government has effectively admitted that it totally screwed up and falsely seized & censored a non-infringing domain of a popular blog, having falsely claimed that it was taking part in criminal copyright infringement. Then, after trying to hide behind a totally secretive court process with absolutely no due process whatsoever (in fact, not even serving papers on the lawyer for the site or providing timely notifications -- or providing any documents at all), for over a year, the government has finally realized it couldn't hide any more and has given up, and returned the domain name to its original owner. If you ever wanted to understand why ICE's domain seizures violate the law -- and why SOPA and PROTECT IP are almost certainly unconstitutional -- look no further than what happened in this case.
Okay, now some details. First, remember Dajaz1.com? It was one of the sites seized over the Thanksgiving holiday weekend back in 2010 -- a little over a year ago. Those seizures struck us as particularly interesting, because among the sites seized were a bunch of hip hop blogs, including a few that were highly ranked on Vibe's list of the top hip hop blogs. These weren't the kinds of things anyone would expect, when supporters of these domain seizures and laws like SOPA and PROTECT IP talk of "rogue sites." Blogs would have lots of protected speech, and in the hip hop community these blogs, in particular, were like the new radio. Artists routinely leaked their works directly to these sites in order to promote their albums. We even pointed to a few cases of stars like Kanye West and Diddy tweeting links to some of the seized domains in the past.
In fact, as the details came out, it became clear that ICE and the Justice Department were in way over their heads. ICE's "investigation" was done by a technically inept recent college grad, who didn't even seem to understand the basics of the technology. But it didn't stop him from going to a judge and asking for a site to be completely censored with no due process.
The Dajaz1 case became particularly interesting to us, after we saw evidence showing that the songs that ICE used in its affidavit as "evidence" of criminal copyright infringement were songs sent by representatives of the copyright holder with the request that the site publicize the works -- in one case, even coming from a VP at a major music label. Even worse, about the only evidence that ICE had that these songs were infringing was the word of the "VP of Anti-Piracy Legal Affairs for the RIAA," Carlos Linares, who was simply not in a position to know if the songs were infringing or authorized. In fact, one of the songs involved an artist not even represented by an RIAA label, and Linares clearly had absolutely no right to speak on behalf of that artist.
Despite all of this, the government simply seized the domain, put up a big scary warning graphic on the site, suggesting its operators were criminals, and then refused to comment at all about the case. Defenders of the seizures insisted that this was all perfectly legal and nothing to be worried about. They promised us that the government had every right to do this and plenty of additional evidence to back up its claims. They promised us that the government would allow for plenty of due process within a reasonable amount of time. They also insisted that, after hearing nothing happening in the case for many months, it meant that no attempt to object to the seizure had occurred. Turns out... none of that was true.
What happened next is a story that should never happen in the US. It's like something out of Kafka or the movie Brazil, but it should never have happened under the US Constitution. First, you have to understand the two separate processes: there's seizure and then there's forfeiture. Under the seizure laws, the government has 60 days from seizure to "notify" those whose property it seized (imagine having the government swoop in and take away your property, and not even being told why for two whole months). Once notified, the property owner has 35 days to file a claim to request the return of the property. If that doesn't happen, the government can effectively just keep the property, so it tends to rely on intimidation and threats towards anyone who indicates plans to ask for their property back (usually in the form of threatening to file charges). However, if such a claim is filed, the government then has 90 days to start the full "forfeiture" process, which would allow the government to keep the seized property and never have to give it back. If the claim to return the property is filed and the government does not file for forfeiture, it is required to return the property. Thus seizures are supposedly used as a temporary part of the investigation, to stop criminal activity or to prevent the destruction of evidence. However, that's not how things always play out in real life.
As we'd heard with a number of domain names that had been seized, the government began stalling like mad when contacted by representatives for domain holders seeking to get their domains back. ICE even flat out lied to the public, stating that no one was challenging the seizures, when it knew full well that some sites were, in fact, challenging. Out of that came the Rojadirecta case, but what of Dajaz1?
After continuing to stall and refusing to respond to Dajaz1's filing requesting the domain be returned, the government told Dajaz1's lawyer, Andrew P. Bridges, that it would begin forfeiture procedures (as required by law if it wanted to keep the domain). Bridges made clear that Dajaz1 would challenge the forfeiture procedure and seek to get the domain name back at that time. Then, the deadline for the government to file for forfeiture came and went and nothing apparently happened. Absolutely nothing. Bridges contacted the government to ask what was going on, and was told that the government had received an extension from the court. Bridges, quite reasonably, asked how that was possible without him, as counsel for the site, being informed of it or given a chance to make the case for why such an extension was improper.
He also asked for a copy of the the court's order allowing the extension. The government told him no and that the extension was filed under seal and could not be released, even in redacted form.
He asked for the motion papers asking for the extension. The government told him no and that the papers were filed under seal and could not be released, even in redacted form.
He again asked whether he would be notified about further filings for extensions. The government told him no.
He then asked the US attorney to inform the court that, if the government made another request for an extension, the domain owner opposed the extension and would like the opportunity to be heard. The government would not agree.
And file further extensions the government did. Repeatedly. Or, at least that's what Bridges was told. He sent someone to investigate the docket at the court, but the docket itself was secret, meaning there was no record of any of this available.
The government was required to file for forfeiture by May. The initial (supposed) secret extension was until July. Then it got another one that went until September. And then another one until November... or so the government said. When Bridges asked the government for some proof that it had actually obtained the extensions in question, the government attorney told Bridges that he would just have "trust" him.
Finally, the government decided that it would not file a forfeiture complaint -- because there was no probable cause -- and it let the last (supposed) extension expire. Only after Bridges asked again for the status of the domain did the government indicate that it would return the domain to its owner -- something that finally happened today. Dajaz1.com is finally back in the hands of its rightful owner. This is really quite incredible, considering the "rush" with which it seized these domain names, claiming the urgency in stopping a crime in progress. But, of course, after realizing that it had no evidence to suggest a crime was ever in progress - there was absolutely no urgency to correct the error.
The level of secrecy in this case makes it sound like a terrorist investigation, not the censorship of a popular music blog. Normally, when there's a lawsuit, the docket is available on PACER. Even in cases where things are filed under seal or everything is redacted, there's at least a placeholder for them in PACER. This case does not exist anywhere that anyone can find. The docket was apparently kept hidden in a judge's office in Los Angeles the whole time. No one knew this was going on, other than the US Attorney and the representatives of Dajaz1 (who still never saw the docket or the extension orders).
Let's just take stock here for a second. We have the government clearly censoring free speech in the form of a blog that discussed the music world and was widely recognized for its influence in promoting new acts. The government seized the blog with no adversarial hearing and no initial due process. Then, rather than actually provide some sort of belated due process in the form of an adversarial hearing, it continued to deny any and all due process by secretly (even to Dajaz1's own lawyer) extending the seizure without any way to challenge those extensions. All in all, the government completely censored a popular web site for over a year, when it had no real evidence for probable cause of infringement, as it had falsely claimed in the original rubber stamped affidavit. As we noted in reviewing the affidavit, the case had been put together by folks who clearly did not understand the law, the site or the music space. But to then double down on that and continue to hold the domain for a year in secret? That just compounds the error and takes it to new extremes.
This was flat out censorship for no reason, for an entire year, by the US government... Everyone should be horrified by this. It also shows what a joke the claims of supporters are that since "a judge reviewed the affidavit," there's due process. Without the other party, there is no real due process. Not only that, but the government made sure, at every step of the way, that the other party was not heard. That's horrifying. It wasn't just an act of omission in leaving out the party, but actively preventing the party from being heard.
And yet the feds and private companies continue to say we should just "trust them" to get these kinds of things right? Even more bizarre, they want to expand their ability to do this incontestable censorship through laws like PROTECT IP and SOPA? If anything, this massive screwup on the part of ICE, the Justice Department and the RIAA should lead us to go in the other direction. ICE and the DOJ should be investigated and reprimanded, if not directly penalized, for clear First Amendment violations, while the ICE program for seizing domains should be dismantled. John Morton, who led ICE's domain seizure program, should tender his resignation or be fired. Victoria Espinel, the Intellectual Property Enforcement Coordinator, who defended these seizures to Congress, should issue a public apology, and begin a process to revamp the government's role in such enforcement actions (and consider tendering her resignation as well). The federal government should issue a huge apology to the operators of Dajaz1 and make it clear that it will no longer take such drastic censorship actions. The RIAA should be investigated for providing claims about the site that were not true, and which it had no right to make.
If Congress needs to do anything, it should be to investigate the lawless, unconstitutional, cowboy censorship and blocking of due process by both Homeland Security and the Justice Department. The last thing it should be doing is allowing more such actions. This whole thing has been a disgrace by the US government, starting with a bogus seizure, improper and illegal censorship, followed by denial of due process and unnecessary secrecy. Dajaz1 is currently reviewing its options in terms of whether it can or should take further action as a result of this, but at least it has its domain back. And people wonder why we're so concerned about these seizures and new proposals to further such censorship. Brazil
Good. At least we're on the first to know list.
So, people who own part of a company would be unprotected from gov’t confiscations. No thanks.
bfl
http://www.freerepublic.com/focus/f-news/2815035/posts
http://www.freerepublic.com/focus/f-news/2815009/posts
The second article discusses it more in detail, it is an amendment to a bill, not a bill like I originally thought. My buddy says the amendment or section is numbered 1031 to the Defense Appropriations bill.
So you are willing to keep the problem alive while fighting the symptoms? If they are stupid enough to place ALL of their personal property and holdings under a corporate name instead of their own I have no sympathy. The old stories and laws indeed allowed for that, but no longer. Personal property and possessions outside of the corporation are not taken in a corporate bankruptcy, however too often we've seen where people have sheltered their ill-gotten gains inside a corporate veil. We need to fix the problem, not fight the symptoms.
Yes, it’s obvious that you don’t care about property rights, and are in fact in favor of an all-powerful state.
I would vote for Son of Sam over Obama at this point. Screw the purist on this site. If we do not get rid of Obama, there will be nothing left to save!
Great post!
If you have a Sams membership card, you're probably already on their list.
If you are a registered Republican or Independent, you're probably already on their list.
If you own more than one gun, or own a dog, you are probably already on their list.
Why worry about FR?
We are probably already on more lists than we care to know.
As against an all-powerful federal government - yes. You have a better chance to change states than to avoid the feds; true? The Founders that wrote the Constitution knew that too, which is why they regulated commerce but did nothing - federally - to regulate corporations; that was left to the States.
Ping for later
Amen brother...the time has come for principle men and women to stand together!
Mike Mathis
I have worked in the classified industries for many years but I still believe that court is not legal. It suspends habeas corpus on mere government request.
While your post appeared on another thread, it is very appropriate and important to bring *this* issue to your attention.
This article actually speaks to your points even better.
I am not a ‘serial pinger’ on FR, but I wanted to share this memo written by Harvard law professor Laurence Tribe:
http://www.scribd.com/doc/75153093/Tribe-Legis-Memo-on-SOPA-12-6-11-1
Some excerpts that will be used by political activists to shut down opposing viewpoints and shutdown FR eventually:
• The notice-and-termination procedure of Section 103(a) runs afoul of the “prior
restraint” doctrine, because it delegates to a private party the power to suppress speech without
prior notice and a judicial hearing. This provision of the bill would give complaining parties the
power to stop online advertisers and credit card processors from doing business with a website,
merely by filing a unilateral notice accusing the site of being “dedicated to theft of U.S.
property” – even if no court has actually found any infringement.
(IMAGINE HOW THAT WILL BE ABUSED BY MARXIST AGITPROP ORGANIZERS)
• To compound the problem, SOPA provides that a complaining party can file a notice
alleging that it is harmed by the activities occurring on the site “
or portion thereof
.”
Conceivably, an entire website containing tens of thousands of pages could be targeted if only a
single page were accused of infringement. Such an approach would create severe practical
problems for sites with substantial user-generated content, such as Facebook, Twitter, and
YouTube, and for blogs that allow users to post videos, photos, and other materials.
(IMAGINE HOW THAT WILL BE ABUSED BY MARXIST AGITPROP ORGANIZERS AND MSM NEWSHACKS LOOKING TO MAKE A NAME FOR THEMSELVES *cough* Chris Parry of The Vancouver Sun *cough*)
• The bill’s harmful impact is aggravated by the fact that the definition of websites
“dedicated to theft of U.S. property” includes sites that take actions to “avoid confirming a high
probability of … use” for infringement. Absence of knowledge of specific infringing acts would
not be a defense. Thus, the definition would effectively require sites actively to police
themselves to ensure that infringement does not occur. In effect, the bill would impose the very
monitoring obligation that existing law (in the form of the Digital Millennium Copyright Act of
1998) expressly does
not
require. SOPA would undo the statutory framework that has created
the foundation for many web-based businesses.
(IMAGINE HOW THAT WILL BE ABUSED BY MARXIST AGITPROP ORGANIZERS AND MSM LAWYER HACKS LOOKING TO MAKE A NAME FOR THEMSELVES and/or to acquire/steal prime URL addresses.)
Please read the whole memo, it’s worth your time.
So that’s where we’re at as a society.
Because "they" the CIS work for the alleged rights of Hollywood and not the inherent Constitutonal rights of American citizens. They'd rather find ways to enforce laws against American citizens than against those of illegal standing who steal the identity of American citizens. Hollywood is a prime supporter of illegal immigration and the anti-gun rights movement and they regularly get special enforcement attention and taxpayer subsidies while American citizens get screwed.
Americans have forgotten one very important point....we are under what “W” designated a Declared State of Emergency and have been since 9-11-01. http://constitutionally.blogspot.com/
Our Constitutional rights were weakened after 9-11 and reaffirmed later by Obama. This is about a government and the political elite of both Parties that enjoy having more power (not less) over the people.
Read about the Declared State of Emergency that was put into effect after 9-11-01 by Bush and the Continuity of Government. We’ll likely have an annual declared terrorist event, just to keep the rationale for the emergency in place. So when those of you want events declared as terrorism, you might wish to think the implications of it. With every such event the power of government grows and the power of the people is reduced.
I have been reading a lot about this law. It would the end of the Internet as we know it.
I have already seen people team up politically and/or socially to make false copyright and community violation complaints against youtubers so they can get their channels closed down. I have seen some that I suspect orginate with politicans and government agencies like TSA and NASA who are offended by critics. Sometimes after you-tube is nagged enough, they will find the charges false and re-instate the channels but advertising income and reputations are lost in the process.
This law will make it too risky to continue community websites.
The copyright lawyers and other copyright special interests have bought the Congress and they are perfectly willing to violate the constitution to guarentee their money flow. How dishonest and disgusting that we even have to deal with a Congress so treasonous.
Disclaimer: Opinions posted on Free Republic are those of the individual posters and do not necessarily represent the opinion of Free Republic or its management. All materials posted herein are protected by copyright law and the exemption for fair use of copyrighted works.