Saturday, December 04, 2010

More on Homeland Security power grab over the internet

From a law professor:
"Some of you may recall that a month ago or so, I posted a comment here about a bill making its way through the Senate, the Combating Online Infringements and Counterfeits Act (“COICA”), that would allow US courts to “seize” domain names belonging to US or foreign websites simply upon a charge, by the Attorney General, that the site was “primarily devoted” to infringing activities.

I was the author of a law professors’ “Letter in Opposition” to the bill, which garnered around 50 co-signatories, based largely on the grounds that these seizures would represent “prior restraints on speech” under the First Amendment, and were blatantly unconstitutional.

Whether the Letter had any effect is not clear — but the bill, which passed through the Judiciary Committee without opposition, has been stalled by Senator Wyden of Oregon, who has put a “hold” on it.

That’s the good news. The bad news is that the US government apparently believes it has the power to do what COICA purported to authorize it to do even without new statutory authority. Over the past weekend, as many news outlets have reported, US Immigration and Customs Enforcement (“ICE”) — a division of the Department of Homeland Security — seized over 80 domain names being used by websites involved in online file-sharing (such as torrentfinder.com, a site pointing to other sites enabling use of the BitTorrent file-sharing protocol) and sale of allegedly counterfiet goods (e.g., louisvuittonoutlet.com, scarfsonline.com).

The warrants were apparently served on Verisign, the “registry” for several top-level domains (including .com and .net), ordering Verisign to transfer the domain names in question to the US government.

It’s an outrage. To begin with, there’s the bizarre spectacle of the Department of Homeland Security – which, last I looked, had some important issues before it that actually relate to “homeland security” — expending time and resources to protect purely private interests (of. e.g., the Louis Vuitton handbag manufacturers and Warner Brothers’ Records).

And the operation perfectly illustrates the objections we raised in the COICA Letter: 80 websites — many of them operating overseas — have now been prevented from speaking to US citizens even though the website operators, whose domains were seized, had no notice or opportunity to respond to the charges against them (and to argue, for instance, that they are NOT infringing copyrights or trademarks), no adversary hearing, and certainly no adjudication before a neutral, that anything unlawful is going on at these sites, only an affidavit to that effect submitted by the ICE.

I’m no expert in forfeiture law, to be sure — but the notion that the government can seize property before there’s been anything like a true hearing on the matter of unlawfulness of conduct strikes me as truly appalling. As I wrote in that COICA Letter:

Our ability to defend the principle of the single global Internet – the Internet where all of humanity has equal access to knowledge and ideas, the Internet that looks the same to, and allows free and unfettered communication between, users located in Shanghai and Seattle and Santiago, free of locally imposed censorship regimes – will be deeply compromised by [seizures of this kind], which would enshrine in U.S. law for the first time the contrary principle: that all countries have a right to insist on the removal of content, wherever located, from the global Internet in service of the exigencies of local law.

Nothing limits the application of this principle to copyright or trademark infringement, and nothing limits the application of this principle to actions by the United States; when all countries exercise this prerogative in support of their local legal regimes, as they surely will, we will have lost – or, more properly speaking, we will have destroyed – the single global interconnected communications platform that we have built over the past several decades and that holds out so much promise for the improvement of human society across the globe.

Source

5 comments:

Abu Kareem said...

America has been seizing property without charges/trials for decades. If you drive on a certain Intersate highway in a certain county and have a certain amount of cash on you, they take your money and your car because you MIGHT be a drug dealer. This was reported on several shows (20/20 I think did a good report). Why should this ba any different.

Anonymous said...

And they say the US isn't like a 3rd world country - the poverty, the crime, the official and police corruption, the abuse of the Constitution - which does in theory still exist that gives the illusion of living in the "freeist" country in the world - yeah rite!

stinky said...

It is the judiciary's job to rein in such excesses, but they've been too busy chasing penumbras to bother.

Anonymous said...

Why is anyone surprised to see the current govt. in DC circumventing the Constitution. The president, his handlers, and a compliant congress, have been doing it since being sworn in. Up until this Marxist administration took office, any president who attempted to take power and authority away from congress was quickly put in his place. This president has totally ignored congress, and, got away with it!

It doesn't take a political or legal genius to realize that this administration means to exert "total control" over the every day lives of America's people. In fact, every single new law and regulation they've put forward is intended to serve that purpose, regardless of the fact that they are disguised as so-called, health care, energy, jobs, the economy, etc. It's about CONTROL!

Remember the old question Ronald Reagan asked the people? (are you better off now than you were 4 years ago?) Well, ask yourself this. Do you have more freedom and liberty now than you did two years ago?

If you answered yes, call an undertaker because your brain has died.

Spurwing Plover said...

Where BONNY & CLYDE and JOHN DILLENGER did it with guns the federal goverment just walks in and robs rich and poor alike and keeps it to give out to vaerious forgein goverments