December 9, 2011 | By Trevor Timm

Blacklist Bills Ripe for Abuse Part II: Expansion of Government Powers

Yesterday, in part one of our series, we looked at how corporations are already abusing the current copyright system as part of their business model, and how the blacklist bills would increase their ability to do so. Today, we’ll look at how the Justice Department and private companies have already been going after domain names seizures, without due process, and how the Stop Internet Piracy Act (SOPA) and PROTECT-IP (PIPA) will make this much easier.

Yesterday, Techdirt’s Mike Masnick reported on the shocking case of a music blog that was hijacked and censored by the U.S. Immigration and Customs enforcement (ICE) and the Justice Department for over a year. In November 2010, ICE seized a number of domain names, including the popular hip-hop blog Dajaz1.com, based on allegations of copyright and trademark infringement. As was widely reported at the time, Dajaz1 should never have been targeted — indeed, many of the allegedly infringing links were given to him by artists and labels themselves, including Kanye West, Diddy, and a VP a major record label.

What followed was a year of frustration: Dajaz1 tried to follow the government’s bewildering procedure for retrieving his domain names, while the government abused the process, seeking secret extensions and declining to cooperate with Dajaz1, even minimally, to get the matter resolved (or at least heard by a court).  Finally, the government dropped the case, with no apologies. As Masnick says in his piece, “This was flat out censorship for no reason, for an entire year, by the US government… Everyone should be horrified by this.”

Spanish site Rojadirecta has been subjected to a similar experience at the hands of ICE. Under accusations of copyright infringement, the agency seized both Rojadirecta.org and Rojadirecta.com, two domains of a popular sports streaming site run by a company called Puerto 80 — even though Spanish courts had already found the sites were not violating copyright. Puerto 80 then spent months attempting to resolve the issue informally, but was given the runaround by government officials.  This week, after months of litigation a federal court dismissed the governments’ case against Puerto 80, but that doesn’t mean Puerto 80 gets its sites back. (Puerto 80 is seeking redress from an appellate court, with amicus support from EFF and other public interest organizations).

As outrageous as this government behavior is, these are not isolated cases. For example, one U.S. judge recently ordered hundreds of domain names seized and ordered Facebook and Google to delist them from their services. The fashion company Chanel asked a court for the seizure and after a series of unopposed hearings granted Chanel’s request in full. Ars Technica explains the less-than-scientific evidence Chanel submitted:

How were the sites investigated? For the most recent batch of names, Chanel hired a Nevada investigator to order from three of the 228 sites in question. When the orders arrived, they were reviewed by a Chanel official and declared counterfeit. The other 225 sites were seized based on a Chanel anti-counterfeiting specialist browsing the Web.

Under SOPA, this kind of slipshod takedown will be standard procedure. Not only will the Attorney General have the ability to go to a court and, without any hearing from the other side, get an order blocking websites’ domain names, he or she could also force search engines like Google to delist the websites from their index. In addition, the Attorney General — at his or her sole discretion — can prohibit advertisers, payment processors, and servers from doing any business with the websites. Essentially, the government can “disappear” the website entirely — at least for U.S. residents who haven’t taken advantage of the numerous workarounds that will undoubtedly spring up.

This can be a huge problem not just for individual websites wrongly accused, but for anyone on the web, as the ICE seizure of mooo.com shows.  Remember that fiasco? The authorities thought they were seizing domains related to child pornography, but inadvertently ended up censoring an astounding 84,000 sites under the domain owned by Free DNS. The overwhelming majority of these sites, of course, had nothing to do with child pornography. The domains were restored, but it surely didn’t help the websites traffic to display a “seized by ICE” page to regular visitors. As for the myriad of constitutional and practical problems with this, we’ll let Rep. Zoe Lofgren (D-CA) speak for us:

They [ICE] don't even have the authority to do what they're doing. Their effort to essentially seize—I think illegally—these domain names lacks due process, in some cases has violated the First Amendment rights of individuals…Can you imagine as a small business person what that would do to your business, if you are completely innocent? It's a mess.

Indeed.  Please help keep the Internet free and take action to help stop this bill.


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