Without Warning, U.S. Government Puts Domains on ICE

December 12, 2011

1:00 pm

Imagine you have a thriving company website that’s generating a significant amount of traffic and revenue from customers and fans around the world. Next, imagine that a government could take it down, without notice, and that you can’t stop it from happening or get your domain back by going to court. Welcome to the U.S.

Did you know that the U.S. Office of Immigrations and Customs Enforcement (ICE) has been seizing the domain names of websites suspected of engaging in copyright infringement or participating in counterfeit goods sales that violate trademarks? The government has even seized a number of linking sites that don’t seem to be hosting illicit materials. Over this past Thanksgiving weekend alone, ICE reportedly seized over 150 domain names.

ICE doesn’t need an injunction or a verified accusation of wrongdoing to seize .com or .org domains, which are registered in the U.S.  It talks with a magistrate judge and shows that judge it has “probable cause” to believe that the site is engaging in illegal activities involving intellectual property (IP) rights. On this basis, it can shut the site down without notifying the owner or giving it an opportunity to defend against the allegations. It’s the equivalent of being blackballed from e-commerce and the Internet. But there’s no “day in court.”

The office has, by its own report, used a civil forfeiture statute to seize 350 separate websites suspected of violating U.S. IP rights since 2010. If you visit some of these sites, a notice of seizure and a link to ICE’s anti-piracy video will greet you.

If you have been following Congress’s efforts to reform copyright law and address Internet piracy, you’ve probably heard about the Senate’s Protect IP Act (PIPA) and the House’s companion bill, Stop Online Piracy Act (SOPA).  These bills are designed to give U.S. Customs enforcement additional powers to respond to piracy of protected materials (like copyrighted works), particularly over the Internet.  Both bills have already received a fair amount of press and criticism, which I won’t rehash in this post.

These types of provisions—which essentially side-step normal due process protection mechanisms found in other types of enforcement proceedings in the U.S.—sent industry groups, powerful companies, and individual activists into a frenzy. What these groups haven’t focused on is the fact that unilateral domain seizures are already happening under ICE’s direction.

One recent high-profile seizure illustrates the point. Puerto80’s website, Rojadirecta, had more than 800,000 users, some of whom the government alleges linked to some information that infringed copyrights.  ICE concluded that the foreign website can be seized and shut down because the owners may be aiding in criminal copyright infringement that occurs on their sites. (While the DMCA protects third party sites in the U.S. from liability for content that they did not post on the site, it does not protect foreign companies.)

Another popular hip hop blog that was seized about a year ago, Dajaz1, has just been returned to the site owner. The owner publicly stated that record companies and artists provided pre-release music available on the site, but it never had a chance to demonstrate that fact to the government before or after its site was taken away. Nor could its lawyer get access to the secret court file held by a judge in Los Angeles related to its seizure.

These types of shut downs affect First-Amendment protected materials, unprotected speech, and a wealth of other information and activities beyond those that are illegal under U.S. IP laws. And this raises significant concerns about whether ICE really has the legal authority to make these seizures and whether the government is taking steps to ensure that it’s not nabbing sites that haven’t acted illegally.

It’s time for the technology community to start paying attention to ICE’s activities.

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Antigone is a recovering BIGLAW lawyer who is now the founder and CEO of Cloudigy Law. She is an unabashed technophile who loves her day job because it’s about 50% technology and 50% law. Follow Antigone on Twitter @antigonepeyton.

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