[governance] Feds Falsely Censor Popular Blog For Over A Year, Deny All Due Process, Hide All Details...

[Riaz K Tayob]

  Breaking News: Feds Falsely Censor Popular Blog For Over A Year, Deny
  All Due Process, Hide All Details...


      from the /copyright-as-censorship/ dept

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 /over a year/, 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.

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 /exactly/ 
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."

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 *criminal* 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 /over a year/, 
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.

Okay, now some details. First, remember Dajaz1.com <http://dajaz1.com/>? 
It was one of the sites seized 
<http://www.techdirt.com/articles/20101128/15302012021/who-needs-coica-when-homeland-security-gets-to-seize-domain-names.shtml> 
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 hip hop blogs 
<http://www.techdirt.com/articles/20101130/00245312049/if-newly-seized-domains-were-purely-dedicated-to-infringement-why-was-kanye-west-using-one.shtml>, 
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.

In fact, as the details 
<http://www.techdirt.com/articles/20101217/01190512310/homeland-security-presents-evidence-domain-seizures-proves-it-knows-little-about-internet---law.shtml> 
came out, it became clear that ICE and the Justice Department were in 
/way/ 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.

The Dajaz1 case became particularly interesting to us, after we saw 
evidence 
<http://www.techdirt.com/articles/20101222/02112912376/more-bigger-mistakes-discovered-homeland-securitys-domain-seizures.shtml> 
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.

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 /at all/ 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.

What happened next is a story that should never happen in the US. It's 
like something out of Kafka or the movie /Brazil/, 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 *90 
days* 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 /supposedly/ 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.

As we'd heard with a number of domain names that had been seized, the 
government began stalling 
<http://www.techdirt.com/articles/20110521/15125114374/why-we-havent-seen-any-lawsuits-filed-against-government-over-domain-seizures-justice-department-stalling.shtml> 
like mad when contacted by representatives for domain holders seeking to 
get their domains back. ICE even flat out lied to the public 
<http://www.techdirt.com/articles/20110608/20310614626/ice-wants-european-countries-to-join-domain-seizure-party.shtml>, 
stating that no one was challenging the seizures, when it /knew/ full 
well that some sites were 
<http://www.techdirt.com/articles/20110612/21573514664/list-sites-challenging-domain-seizures.shtml>, 
in fact, challenging. Out of that came the Rojadirecta case 
<http://www.techdirt.com/articles/20110613/12021514673/rojadirecta-sues-us-government-homeland-security-ice-over-domain-seizure.shtml>, 
but what of Dajaz1?

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 *came and went and nothing apparently happened*. 
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.

He also asked for a copy of the the court's order allowing the 
extension. *The government told him no and that the extension was filed 
under seal and could not be released, even in redacted form.*

He asked for the motion papers asking for the extension. *The government 
told him no and that the papers were filed under seal and could not be 
released, even in redacted form.*

He again asked whether he would be notified about further filings for 
extensions. *The government told him no*.

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. *The 
government would not agree.*

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.

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 /another one/ until November... or so the 
government said. When Bridges asked the government for /some proof/ that 
it had actually obtained the extensions in question, the government 
attorney told Bridges that he would just have "trust" him.

Finally, the government decided that it would *not file a forfeiture 
complaint -- because there was no probable cause --* and it let the last 
(supposed) extension expire. Only after Bridges asked /*again*/ for the 
status of the domain did the government indicate that it would return 
the domain to its owner -- something that finally happened *today*. 
Dajaz1.com <http://dajaz1.com/> 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.

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).

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 *for over a year*, 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.

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, *at 
every step of the way*, that the other party *was not heard*. That's 
horrifying. It wasn't just an act of omission in leaving out the party, 
but actively preventing the party from being heard.

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.

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 /last/ 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.

http://www.techdirt.com/articles/20111208/08225217010/breaking-news-feds-falsely-censor-popular-blog-over-year-deny-all-due-process-hide-all-details.shtml

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