This comes after TechDirt.com reviewed a partial affidavit of Homeland Security, a few days ago in an article entitled “Homeland Security Knows Little About the Internet or the Law”, and came away less than impressed:
“”Even going beyond the fact that (the agent in charge) 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. “”
“”The entirety of the evidence against Torrent Finder appears to be that because you could do a search that takes you to another site and because the site’s admin linked to some blog posts that discuss — but do not encourage — the state of file sharing, that there is probable cause of criminal behavior and your domain can and should be seized without any adversarial trial.””
“Equally troubling is that magistrate judge Margaret Nagle signed off on the warrants (literally, with a rubber stamp) without questioning any of this.”
“Nowhere is there any discussion on how the seizure of domain names has nothing to do with the actual servers. Nowhere is there any discussion about first amendment issues in seizing domain names. Nowhere is there any discussion about prior restraint. Nowhere is there any discussion about the difference between a search engine and a torrent tracker.
Nowhere is there any discussion about the difference between an infringing file and a torrent. Nowhere is there any discussion about the difference between a link to a news blog post about current events and encouraging people to download infringing content.
“I thought the whole thing was ridiculous before. But now that I’ve read the affidavit — at least the part about Torrent Finder — it’s become clear that this is a colossal screwup on the part of Homeland Security, ICE and the US government, based on a freshly minted ICE agent who doesn’t seem to understand the technology, being lead around by the nose by MPAA staff with an agenda”
“””So now we can see the “details” of the evidence put together by Agent Reynolds that was (literally) rubber stamped by magistrate judge Margaret Nagle, and it’s looking worse and worse for Homeland Security.”
“Basically, all of the sites in question had some forums and in some of those forums, some users posted links to other sites, which hosted some content. In other words, under these conditions, an awful lot of domain names on the internet can be seized by ICE.””
“”At no point, does it appear that any effort was made to establish that seizing an entire domain based on a small fraction of what occurred on the site does not violate the First Amendment. ”
“Domain names themselves can be considered speech as has been highlighted in a few different cases. Second, and more importantly, Agent Reynolds’ own affidavit makes it clear that the seizures of domain names was because of the content found on those domains (though, he repeatedly, mistakenly seems to think that content on other servers is the responsibility of those domains).”
“If Reynolds was only seizing the domain names to avoid stifling speech of the content on the rest of the servers, his entire argument fails. In his affidavit, he clearly states that he wants to seize the domain names because the domain names are “property used, or intended to be used to commit or facilitate criminal copyright infringement.” But, if we’re really going to argue that the domain names and the content on the servers are separate, then this argument makes no sense. The domain names themselves are not being used to commit or to facilitate criminal copyright infringement. Only some of the content on the servers.””
“”Furthermore, Agent Reynolds’ explanation for why the domains need to be seized rather than allowing an adversarial hearing to take place are laughable at best:
Neither a restraining order nor an injunction is sufficient to guarantee the availability of the SUBJECT DOMAIN NAMES for forfeiture. By seizing the SUBJECT DOMAIN NAMES and redirecting them to another website, the Government will prevent third parties from acquiring the names and using them to commit additional crimes. Furthermore, seizure of the SUBJECT DOMAIN NAMES will prevent third parties from continuing to access the five websites listed above.
“In other words, in yet another moment of technological ignorance on the part of Agent Reynolds and the judge in question, they seem to really believe that seizing the domain names prevents people from accessing the content in question. Of course, that was quickly proven false by the fact that most of these sites reappeared within hours on different domain names. But it also highlights how Reynolds really did mean to shut down the entire website (he was just somewhat clueless in how to actually do so) with zero regard (as required by the law) for the First Amendment implications.”””
I personally get very nervous as an attorney and a businessman when the government can wind up taking your property without a hearing on the basis of an affidavit signed by an government employee with limited experience.
Hell this guy isn’t Elliot Ness.
He is an agent with very limited experience in the IP business and was chasing illegals across the fence just a few years ago.
While some will jump to the “government wouldn’t take anything that’s involved in a crime” defense I’m don’t give the government that kind of credit.
I have read enough books and articles to know sometimes the innocent spend much of they’re lives in jail wrong accused of crimes, and other wind up getting a death sentence only to find out years later that someone in the government made an oops!!
So when the government acts without a hearing, without the “bad actor” having a chance to be present with the opportunity to represent themselves, and without a chance to cross exam their accusers well maybe we should just shift all domain hearing to Gitmo.
While many are more than willing to believe the Government when they say the sky is blue, I know that sometimes they’re are red skies at night and I want the government to prove their case in a court of law with all parties present before property is seized.