Senator Wyden Demands Feds Justify Domain Seizures

Senator Wyden Demands Feds Justify Domain Seizures

Asks Obama Administration to explain what standard the DoJ expects other countries to use when seizing US-based domain names, as well as whether or not the DoJ and ICE take into account the legality of sites in their home country before seizing them.

Senator Ron Wyden, the Oregon Democrat responsible for putting a hold on the controversial Combating Online Infringement & Counterfeits Act (COICA) last November, has been among the most vocal critics of domain name seizures.

He’s called the COICA, which would give the DoJ an “expedited process” for site seizures, the “wrong medicine” for battling online copyright infringement, and warns that if not done properly the “collateral damage would be American innovation, American jobs, and a secure Internet.”

Sen Wyden pointed out recently that the “content industry has piggybacked on the legitimate efforts of apparel designers to combat counterfeit goods and now threaten the integrity of the Internet as a means to combat intellectual property infringement.”

In the meantime, as the COICA languishes in Congress, the Immigrations and Customs Enforcement division has seized nearly 100 domain names as part of its ongoing “Operation In our Sites” campaign which it says “threaten economic opportunities” or “destroy jobs” in one form or another.

Sen Wyden has taken notice of this since it’s a mild precursor to what COICA would mean if enacted.

In a letter written to Attorney general Eric Holder and John Morton, Director of ICE, he expresses his dismay what he calls a “major shift” in how the US govt deals with online piracy. Not satisfied with the removal of infringing pages or content it’s ordering the removal of entire websites.

“Moreover, in contrast to ordinary copyright litigation, the domain name seizure process does not appear to give targeted websites an opportunity to defend themselves before sanctions are imposed,” he writes. “As you know, there is an active and contentious legal debate about when a website may be held liable for infringing activities by its users. I worry 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.”

That’s the real crux of the problem. ICE and the DoJ are seizing sites after notifying their owners, and in some cases, without notification.

Sen Wyden says that if ‘Operation in Our Sites” is to continue that the Administration must, at a “minimum,” provide “some clarity” about what types of sites it plans to target and which ones it won’t.

He asks that ICE and the DoJ answer the following questions:

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?

What Sen Wyden is right when he questions the wisdom of seizing foreign sites, especially those that have already been ruled legal in their home country like

Moreover, if we we can seize foreign sites without the benefit of trial, or in some cases, despite of it it seems, then why can’t Iran or other countries seize sites like YouTube or Twitter that violate their country’s laws?

Stay tuned.

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