February 2, 2011

Super Bust: Due Process and Domain Name Seizure

Filed under: Internet, copyright, domain names, sports — wseltzer @ 10:22 pm

This domain name has been seizedWith the same made-for PR timing that prompted a previous seizure of domain names just before shopping’s “Cyber Monday,” Immigration and Customs Enforcement struck again, this time days before the Super Bowl, against “10 websites that illegally streamed live sporting telecasts and pay-per-view events over the Internet.” ICE executed seizure warrants against the 10, ATDHE.NET, CHANNELSURFING.NET, HQ-STREAMS.COM, HQSTREAMS.NET, FIRSTROW.NET, ILEMI.COM, IILEMI.COM, IILEMII.COM, ROJADIRECTA.ORG and ROJADIRECTA.COM, by demanding that registries redirect nameserver requests for the domains to, where a colorful “This domain name has been seized by ICE” graphic is displayed.

As in a previous round of seizures, these warrants were issued ex parte, without the participation of the owners of the domain names or the websites operating there. And, as in the previous rounds, there are questions about the propriety of the shutdowns. One of the sites whose domain was seized was Spanish site rojadirecta.com / rojadirecta.org, a linking site that had previously defeated copyright infringement claims in Madrid, its home jurisdiction. There, it prevailed on arguments that it did not host infringing material, but provided links to software and streams elsewhere on the Internet. Senator Ron Wyden has questioned the seizures, saying he “worr[ies] 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.”

According to ICE, the domains were subject to civil forfeiture under 18 U.S.C. § 2323(a), for “for illegally distributing copyrighted sporting events,” and seizure under § 981. That raises procedural problems, however: when the magistrate gets the request for seizure warrant, he or she hears only one side — the prosecutor’s. Without any opposing counsel, the judge is unlikely to learn whether the accused sites are general-purpose search engines or hosting sites for user-posted material, or sites providing or encouraging infringement. (Google, for example, has gotten many complaints from the NFL requesting the removal of links — should their domains be seized too?)

Now I don’t want to judge the sites’ legality one way or the other based on limited evidence. Chilling Effects has DMCA takedown demands from several parties demanding that Google remove from its search index pages on some of these sites — complaints that are themselves one-side’s allegation of infringement.

What I’d like to see instead is due process for the accused before domain names are seized and sites disrupted. I’d like to know that the magistrate judge saw an accurate affidavit, and reviewed it with enough expertise to distinguish the location of complained-of material and the responsibility the site’s owners bear for it: the difference between direct, contributory, vicarious, and inducement of copyright infringement (for any of which a site-owner might be held liable, in appropriate circumstances) and innocent or protected activity.

In the best case, the accused gets evidence of the case against him or her and the opportunity to challenge it. We tend to believe that the adversarial process, judgment after argument between the parties with the most direct interests in the matter, best and most fairly approaches the truth. These seizures, however, are conducted ex parte, with only the government agent presenting evidence supporting a seizure warrant. (We might ask why: a domain name cannot disappear or flee the jurisdiction if the accused is notified — the companies running the .com, .net, and .org registries where these were seized have shown no inclination to move or disregard US court orders, while if the name stops resolving, that’s the same resolution ICE seeks by force.)

If seizures must be made on ex parte affidavits, the magistrate judges should feel free to question the affiants and the evidence presented to them and to call upon experts or amici to brief the issues. In their review, magistrates should beware that a misfired seizure can cause irreparable injury to lawfully operating site-operators, innovators, and independent artists using sites for authorized promotion of their own materials.

I’d like to compile a set of public recommendations to the magistrate judges who might be confronted with these search warrants in the future, if ICE’s “Operation In Our Sites” continues. This would include verifying that the alleged infringements are the intended purpose of the domain name use, not merely a small proportion of a lawful general-use site.

February 1, 2011

Reflections on Egypt and the Net

Filed under: Internet, censorship, networks — wseltzer @ 9:07 am

Over the last week, I’ve been glued to my Twitter feed (hashtags #jan25, #egypt, and @ioerror, @jilliancyork and @EthanZ are good aggregators) and Al Jazeera English to follow events in Egypt. I can only watch and tweet my support (and work with groups like Tor Project whose technology and training helps dissidents stay safer when they have Net access) as people mass in Tahrir Square for a million+ person march.

I recognize the location of some of Al Jazeera footage from a visit to Cairo. Poignantly, that was in November 2008, in the final days of the U.S. presidential election, when I used the Internet to make skype-based get-out-the-vote calls. Since Mubarak has been in power for 30 years, the Egyptians who cheered Obama’s victory around me had never had the opportunity to vote in meaningful free elections.

As Egypt’s January 25 protests continued, the Egyptian government cut off Internet access (see reports from The Tor Project, Renesys, and RIPE) and mobile SMS from most of the country’s providers. Yesterday, Noor.net, the final provider that had continued to offer Internet connectivity, also became unreachable. Even phone service is uncertain. Andrew McLaughlin eloquently called upon Communications Minister Tarek Kamel to restore communications.

That cut-off in itself demonstrates some of the value of Internet communications: the unpopular government fears the organizing resources the Net provides for citizens, and the window it gives to the world watching and trying to help. While it’s far too early to measure the Net’s impact on revolutionary movements in Egypt, and Tunisia only weeks earlier, we can find potential impacts. Were Egyptians inspired by news from Tunisia’s uprising, some of it reaching them faster online? Did they use social media to organize, along with off-line means? Did social media help to amplify off-line protests, showing solidarity among friends and people they respected, encouraging more to take to the streets? It’s clear that we in the United States have had access to much more information, through the Net, even cut off as it has been, than we’d get quickly from a pre-Internet revolution.

We also see that the Internet is not any particular means of data transport. The independence of layers means that applications don’t care what the route underneath looks like, so long as there is one. That meant that even cutting off Internet service providers couldn’t stop information flows: while Egyptians could call out from the country, they could tell their stories at @jan25voices, and through the Google-Twitter-Phone service, @speak2tweet, that automates some of the voice-Twitter connection. Other providers outside Egypt have offered dial-up lines.

Moreover, the situation illustrates the value of open Internet here at home. Al Jazeera English, the television broadcaster giving the most thorough coverage of the Egyptian events — despite having its Cairo bureau closed and six of its journalists jailed — is not available through most US cable providers. Ryan Grim on Huffington Post calls this a “blackout”, but thanks to the Internet, that need not be a barrier. I’m watching Al Jazeera English on my computer, through pipes that can carry video, audio, and text of my choice. (So it’s disturbing to see Chris Sacca tweet that he “worked at an Akamai competitor when Al-Jazeera sought CDN [content delivery network: local caching that can help improve network delliery] help in 2002. US Gov made clear to us that we would suffer.” Cable’s limited-purpose pipe, where subscribers get only bundles chosen from among the channels their providers offer, seems an anachronism in the Internet age. We may still want to watch video (and not only create it ourselves), but we need Net neutrality’s assurance that we can get it from any source: peer, professional, or dissident.

I’ll continue to watch the tweets and video online, hoping that in the near future, I’ll be able to celebrate with the Egyptian people as they vote in free and democratic elections.

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