Posted on 12/11/2011 5:56:42 AM PST by JerseyHighlander
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? It was one of the sites seized 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, 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 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 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 like mad when contacted by representatives for domain holders seeking to get their domains back. ICE even flat out lied to the public, stating that no one was challenging the seizures, when it knew full well that some sites were, in fact, challenging. Out of that came the Rojadirecta case, 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 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. Brazil
F*%# the government!!!
These people obviously are not familiar with how fascism really works. Ironically, most of their users probably voted for it.
Oh yes, definitely, I see what you mean by selective enforcement.....
When people run for office do the have in their platform things like;
I will spend money in the way to best get me re elected
I will tax internet transactions.
I will bail out corporations.
I will bail out banks.
I will attack other nations because i wish to.
I will raise my own pension.
I will increase my own benefits.
I will trade on inside information.
I will work as few days as possible.
Maybe instead of telling us what they will do they should tell us what they won’t do.
I won’t take vacation after vacation on the taxpayers
dime.
I won’t spend more than the government takes in.
You get the idea. Totally and completely out of control over the top royalists living like some 16th century ruling class.
Maybe more apt under Obama but this is the government. It was here before he came into office and will be here afterwards and its filled with people who believe that they are our masters and whatever they do is justifiable.
Campaign money talks, but only because people are so stupid as to believe mass media content.
I make it easy for them and use my real name.
Go ahead and come after me for what I post.
Agreed. I dsecided about a year ago to stop hiding behind an alias. Let me be the first to be frog marched by the gestapo. I will be avenged.
What I’m trying to ‘get’ is ... yes, there IS a ‘secret court’ for Homeland Security type issues, and I *think* it’s in the DC Circuit. But in those cases I don’t think a lawyer can send someone down to the courthouse to look up the docket (all of which is online in most federal court cases).
But Shiaweb.org, a Hezbollah terrorist website IP hosted in Houston, is still up.
The United States Foreign Intelligence Surveillance Court (or FISC) is a U.S. federal court authorized under 50 U.S.C. § 1803, Pub.L. 95-511, 92 Stat. 1788, enacted October 25, 1978. It was established by the Foreign Intelligence Surveillance Act of 1978 (FISA).
Not me, I un-friended my wife yesterday. I’ll stay anonymous.
Now, put this in the context of recent legislation to make the CONUS a designated military theater of operations so that the govt can take into custody or assassinate people living inside our borders.
It will all be done in secret. They won’t even tell you they have them, and they will hold them as long as they want without trial. It will be illegal and they won’t care.
Secret police type of govt is coming down on us real soon.
Post #33, Yldstrk:
Question: Would somebody named “Tyler” be likely to yell “Allah Akbar”?
I can’t make you watch the video, I can only provide the link.
Here is another one:
http://www.theblaze.com/stories/witness-says-hollywood-shooter-yelled-allahu-akbar/
and was praying it was a 503. (cue spooky music)
This falls under my broad description of Mainstream Media, 60 pages, or my file of Free Speech, 24 pages of links.
It fits somewhere in there, hey, nobody has ever accused me of being normal.
http://www.freerepublic.com/focus/f-news/2817775/posts
.THIS IS A BIPARTISAN THRUST FOR FASCISM. DO NOT BLAME OBAMA. THE MAIN PROPONENT AND BILL SPONSOR OF THIS CORPORATIST FASCISM IS REP. LAMAR SMITH, REPUBLICAN OUT OF TEXAS>
.
Traditional big media firms have contributed more than $5 million to the sponsors of the Stop Online Piracy Act, with California Democratic Reps. Howard Berman and Adam Schiff as the top recipients.
The bill, known as SOPA, would strengthen and extend the penalties for online copyright violations, and could force websites hosting pirated content to come down or prevent search engines from sending users their way. Legacy media companies stand to benefit if there's less unlawful movement of their content on the web, like pirated movies and songs for download.
Some of the nation's top tech companies — Facebook, Google and Microsoft, among others — have spoken out against the bill while media companies have pushed to defend it. SOPA's companion legislation in the Senate, the PROTECT IP Act, is on hold.
Earlier this month we noted that Rep. Lamar Smith, R-Texas, the bill's sponsor in the House, has received nearly $400,000 from the TV, music and movies industry during his career, including some recent timely donations from broadcasting and television groups that are lobbying for the bill.
Among the 25 SOPA cosponsors from both sides of the aisle, here's a breakdown of which legislators have brought in donations from big media in TV, music and movies during their careers in Congress.
The nearly 40 cosponsors of the Protect IP Act, SOPA's partner legislation in the Senate, have received more than $13.5 million from the TV, music and movies industry since entering Congress. Here's a rundown:
Many groups have lobbied for the PROTECT IP Act, including several that employ lobbyists who have worked for the members of Congress who have signed on to the legislation. Among them:
Amazon spent $450,000 on lobbying during the third quarter, some of which was pushing against this bill. Google Inc. also spent some of its $80,000 in third quarter lobbying on fighting this measure, as did Intel, which spent nearly $1 million lobbying in Q3.
SOPA was introduced at the end of October, so lobbying on that bill will show up on fourth quarter lobbying disclosure forms.
I emailed Jim. He took care of it for me.
Bad boy. I unfriended my daughter once. Caught hell.
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