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<h1>Breaking News: Feds Falsely Censor Popular Blog For Over A Year,
Deny All Due Process, Hide All Details...</h1>
<h3>from the <i>copyright-as-censorship</i> dept</h3>
<p>Imagine if the US government, with no notice or warning, raided a
small but popular magazine's offices over a Thanksgiving weekend,
seized the company's printing presses, and told the world that the
magazine was a criminal enterprise with a giant banner on their
building. Then imagine that it never arrested anyone, never let a
trial happen, and filed everything about the case under seal, not
even letting the magazine's lawyers talk to the judge presiding
over the case. And it continued to deny any due process at all for
<i>over a year</i>, before finally just handing everything back to
the magazine and pretending nothing happened. I expect most people
would be outraged. I expect that nearly all of you would say
that's a classic case of prior restraint, a massive First
Amendment violation, and exactly the kind of thing that does not,
or should not, happen in the United States. <br>
<br>
But, in a story that's been in the making for over a year, and
which we're exposing to the public for the first time now, this is
<i>exactly</i> the scenario that has played out over the past year
-- with the only difference being that, rather than "a printing
press" and a "magazine," the story involved "a domain" and a
"blog."
<br>
<br>
There are so many things about this story that are crazy, it's
difficult to know where to start, so let's give the most important
point first: The US government has effectively admitted that it
totally screwed up and falsely seized & censored a
non-infringing domain of a popular blog, having falsely claimed
that it was taking part in <b>criminal</b> copyright
infringement. Then, after trying to hide behind a totally
secretive court process with absolutely no due process whatsoever
(in fact, not even serving papers on the lawyer for the site or
providing timely notifications -- or providing any documents at
all), for <i>over a year</i>, the government has finally realized
it couldn't hide any more and has given up, and returned the
domain name to its original owner. If you ever wanted to
understand why ICE's domain seizures violate the law -- and why
SOPA and PROTECT IP are almost certainly unconstitutional -- look
no further than what happened in this case.
<br>
<br>
Okay, now some details. First, remember <a
href="http://dajaz1.com/" target="_blank">Dajaz1.com</a>? It was
one of the sites <a
href="http://www.techdirt.com/articles/20101128/15302012021/who-needs-coica-when-homeland-security-gets-to-seize-domain-names.shtml">seized</a>
over the Thanksgiving holiday weekend back in 2010 -- a little
over a year ago. Those seizures struck us as particularly
interesting, because among the sites seized were a bunch of <a
href="http://www.techdirt.com/articles/20101130/00245312049/if-newly-seized-domains-were-purely-dedicated-to-infringement-why-was-kanye-west-using-one.shtml">hip
hop blogs</a>, including a few that were highly ranked on Vibe's
list of the top hip hop blogs. These weren't the kinds of things
anyone would expect, when supporters of these domain seizures and
laws like SOPA and PROTECT IP talk of "rogue sites." Blogs would
have lots of protected speech, and in the hip hop community these
blogs, in particular, were like the new radio. Artists routinely
leaked their works directly to these sites in order to promote
their albums. We even pointed to a few cases of stars like Kanye
West and Diddy tweeting links to some of the seized domains in the
past.
<br>
<br>
In fact, as the <a
href="http://www.techdirt.com/articles/20101217/01190512310/homeland-security-presents-evidence-domain-seizures-proves-it-knows-little-about-internet---law.shtml">details</a>
came out, it became clear that ICE and the Justice Department were
in <i>way</i> over their heads. ICE's "investigation" was done by
a technically inept recent college grad, who didn't even seem to
understand the basics of the technology. But it didn't stop him
from going to a judge and asking for a site to be completely
censored with no due process.
<br>
<br>
The Dajaz1 case became particularly interesting to us, after we
saw <a
href="http://www.techdirt.com/articles/20101222/02112912376/more-bigger-mistakes-discovered-homeland-securitys-domain-seizures.shtml">evidence</a>
showing that the songs that ICE used in its affidavit as
"evidence" of criminal copyright infringement were songs sent by
representatives of the copyright holder with the request that the
site publicize the works -- in one case, even coming from a VP at
a major music label. Even worse, about the only evidence that ICE
had that these songs were infringing was the word of the "VP of
Anti-Piracy Legal Affairs for the RIAA," Carlos Linares, who was
simply not in a position to know if the songs were infringing or
authorized. In fact, one of the songs involved an artist not even
represented by an RIAA label, and Linares clearly had absolutely
no right to speak on behalf of that artist.
<br>
<br>
Despite all of this, the government simply seized the domain, put
up a big scary warning graphic on the site, suggesting its
operators were criminals, and then refused to comment <i>at all</i>
about the case. Defenders of the seizures insisted that this was
all perfectly legal and nothing to be worried about. They promised
us that the government had every right to do this and plenty of
additional evidence to back up its claims. They promised us that
the government would allow for plenty of due process within a
reasonable amount of time. They also insisted that, after hearing
nothing happening in the case for many months, it meant that no
attempt to object to the seizure had occurred. Turns out... none
of that was true.
<br>
<br>
What happened next is a story that should never happen in the US.
It's like something out of Kafka or the movie <i>Brazil</i>, but
it should never have happened under the US Constitution. First,
you have to understand the two separate processes: there's seizure
and then there's forfeiture. Under the seizure laws, the
government has 60 days from seizure to "notify" those whose
property it seized (imagine having the government swoop in and
take away your property, and not even being told why for two whole
months). Once notified, the property owner has 35 days to file a
claim to request the return of the property. If that doesn't
happen, the government can effectively just keep the property, so
it tends to rely on intimidation and threats towards anyone who
indicates plans to ask for their property back (usually in the
form of threatening to file charges). However, if such a claim is
filed, the government then has <b>90 days</b> to start the full
"forfeiture" process, which would allow the government to keep the
seized property and never have to give it back. If the claim to
return the property is filed and the government does not file for
forfeiture, it is required to return the property. Thus seizures
are <i>supposedly</i> used as a temporary part of the
investigation, to stop criminal activity or to prevent the
destruction of evidence. However, that's not how things always
play out in real life.
<br>
<br>
As we'd heard with a number of domain names that had been seized,
the government <a
href="http://www.techdirt.com/articles/20110521/15125114374/why-we-havent-seen-any-lawsuits-filed-against-government-over-domain-seizures-justice-department-stalling.shtml">began
stalling</a> like mad when contacted by representatives for
domain holders seeking to get their domains back. ICE even flat
out <a
href="http://www.techdirt.com/articles/20110608/20310614626/ice-wants-european-countries-to-join-domain-seizure-party.shtml">lied
to the public</a>, stating that no one was challenging the
seizures, when it <i>knew</i> full well that <a
href="http://www.techdirt.com/articles/20110612/21573514664/list-sites-challenging-domain-seizures.shtml">some
sites were</a>, in fact, challenging. Out of that came the <a
href="http://www.techdirt.com/articles/20110613/12021514673/rojadirecta-sues-us-government-homeland-security-ice-over-domain-seizure.shtml">Rojadirecta
case</a>, but what of Dajaz1?
<br>
<br>
After continuing to stall and refusing to respond to Dajaz1's
filing requesting the domain be returned, the government told
Dajaz1's lawyer, Andrew P. Bridges, that it would begin forfeiture
procedures (as required by law if it wanted to keep the domain).
Bridges made clear that Dajaz1 would challenge the forfeiture
procedure and seek to get the domain name back at that time. Then,
the deadline for the government to file for forfeiture <b>came
and went and nothing apparently happened</b>. Absolutely
nothing. Bridges contacted the government to ask what was going
on, and was told that the government had received an extension
from the court. Bridges, quite reasonably, asked how that was
possible without him, as counsel for the site, being informed of
it or given a chance to make the case for why such an extension
was improper. <br>
<br>
He also asked for a copy of the the court's order allowing the
extension. <b>The government told him no and that the extension
was filed under seal and could not be released, even in redacted
form.</b>
<br>
<br>
He asked for the motion papers asking for the extension. <b>The
government told him no and that the papers were filed under seal
and could not be released, even in redacted form.</b>
<br>
<br>
He again asked whether he would be notified about further filings
for extensions. <b>The government told him no</b>.
<br>
<br>
He then asked the US attorney to inform the court that, if the
government made another request for an extension, the domain owner
opposed the extension and would like the opportunity to be heard.
<b>The government would not agree.</b>
<br>
<br>
And file further extensions the government did. Repeatedly. Or, at
least that's what Bridges was told. He sent someone to investigate
the docket at the court, but the docket itself was secret, meaning
there was no record of any of this available.
<br>
<br>
The government was required to file for forfeiture by May. The
initial (supposed) secret extension was until July. Then it got
another one that went until September. And then <i>another one</i>
until November... or so the government said. When Bridges asked
the government for <i>some proof</i> that it had actually
obtained the extensions in question, the government attorney told
Bridges that he would just have "trust" him.
<br>
<br>
Finally, the government decided that it would <b>not file a
forfeiture complaint -- because there was no probable cause --</b>
and it let the last (supposed) extension expire. Only after
Bridges asked <i><b>again</b></i> for the status of the domain
did the government indicate that it would return the domain to its
owner -- something that finally happened <b>today</b>. <a
href="http://dajaz1.com/" target="_blank">Dajaz1.com</a> is
finally back in the hands of its rightful owner. This is really
quite incredible, considering the "rush" with which it seized
these domain names, claiming the urgency in stopping a crime in
progress. But, of course, after realizing that it had no evidence
to suggest a crime was ever in progress - there was absolutely no
urgency to correct the error.
<br>
<br>
The level of secrecy in this case makes it sound like a terrorist
investigation, not the censorship of a popular music blog.
Normally, when there's a lawsuit, the docket is available on
PACER. Even in cases where things are filed under seal or
everything is redacted, there's at least a placeholder for them in
PACER. This case does not exist anywhere that anyone can find. The
docket was apparently kept hidden in a judge's office in Los
Angeles the whole time. No one knew this was going on, other than
the US Attorney and the representatives of Dajaz1 (who still never
saw the docket or the extension orders).
<br>
<br>
Let's just take stock here for a second. We have the government
clearly censoring free speech in the form of a blog that discussed
the music world and was widely recognized for its influence in
promoting new acts. The government seized the blog with no
adversarial hearing and no initial due process. Then, rather than
actually provide some sort of belated due process in the form of
an adversarial hearing, it continued to deny any and all due
process by secretly (even to Dajaz1's own lawyer) extending the
seizure without any way to challenge those extensions. All in all,
the government completely censored a popular web site <b>for over
a year</b>, when it had no real evidence for probable cause of
infringement, as it had falsely claimed in the original rubber
stamped affidavit. As we noted in reviewing the affidavit, the
case had been put together by folks who clearly did not understand
the law, the site or the music space. But to then double down on
that and continue to hold the domain for a year in secret? That
just compounds the error and takes it to new extremes.
<br>
<br>
This was flat out censorship for no reason, for an entire year, by
the US government... Everyone should be horrified by this. It also
shows what a joke the claims of supporters are that since "a judge
reviewed the affidavit," there's due process. Without the other
party, there is no real due process. Not only that, but the
government made sure, <b>at every step of the way</b>, that the
other party <b>was not heard</b>. That's horrifying. It wasn't
just an act of omission in leaving out the party, but actively
preventing the party from being heard.
<br>
<br>
And yet the feds and private companies continue to say we should
just "trust them" to get these kinds of things right? Even more
bizarre, they want to expand their ability to do this
incontestable censorship through laws like PROTECT IP and SOPA? If
anything, this massive screwup on the part of ICE, the Justice
Department and the RIAA should lead us to go in the other
direction. ICE and the DOJ should be investigated and reprimanded,
if not directly penalized, for clear First Amendment violations,
while the ICE program for seizing domains should be dismantled.
John Morton, who led ICE's domain seizure program, should tender
his resignation or be fired. Victoria Espinel, the Intellectual
Property Enforcement Coordinator, who defended these seizures to
Congress, should issue a public apology, and begin a process to
revamp the government's role in such enforcement actions (and
consider tendering her resignation as well). The federal
government should issue a huge apology to the operators of Dajaz1
and make it clear that it will no longer take such drastic
censorship actions. The RIAA should be investigated for providing
claims about the site that were not true, and which it had no
right to make.
<br>
<br>
If Congress needs to do anything, it should be to investigate the
lawless, unconstitutional, cowboy censorship and blocking of due
process by both Homeland Security and the Justice Department. The
<i>last</i> thing it should be doing is allowing more such
actions. This whole thing has been a disgrace by the US
government, starting with a bogus seizure, improper and illegal
censorship, followed by denial of due process and unnecessary
secrecy. Dajaz1 is currently reviewing its options in terms of
whether it can or should take further action as a result of this,
but at least it has its domain back. And people wonder why we're
so concerned about these seizures and new proposals to further
such censorship.<br>
</p>
<p><a class="moz-txt-link-freetext" href="http://www.techdirt.com/articles/20111208/08225217010/breaking-news-feds-falsely-censor-popular-blog-over-year-deny-all-due-process-hide-all-details.shtml">http://www.techdirt.com/articles/20111208/08225217010/breaking-news-feds-falsely-censor-popular-blog-over-year-deny-all-due-process-hide-all-details.shtml</a><br>
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