The Department of Homeland Security recently shut down dozens of web sites. Their legal authority to do so was questionable, as was the court’s, and it is part of a disturbing trend.
For more on pruning back executive power see Pruning Shears.
No Associated Press content was harmed in the writing of this post
Last Friday, deep in the middle of a long holiday weekend, the Immigration and Customs Enforcement (ICE) division of the Department of Homeland Security (DHS) seized dozens of web sites. The full list is here, and a common reaction might be “well obviously they were engaged in illegal activity, so they had it coming.” This is an example of what Glenn Greenwald mocked as trial by Wikipedia: the idea that if you bring up a topic which everyone can agree is self-evident, action may be taken without jumping through a whole bunch of tedious legal hoops.
In Greenwald’s case he is describing the hit put out for Anwar al-Awlaki by the president. Supporters of Obama’s assassination program protest that al-Awlaki is clearly a bad man – look at his Wikipedia page! – so it should not be necessary for courts to weigh in on the matter. If enough people who matter (“everyone”) simply recognizes this, due process may be disposed of. Similarly, look at the list of domains seized: who could possibly argue that dvdsetcollection.com is engaged in any kind of legally protected activity? Why, the very name should be enough to convict!
There are several problems with this, one of which Steven Musil points out in his CNET article: Less than two weeks ago Oregon Senator Ron Wyden effectively killed a bill – the Combating Online Infringement and Counterfeits Act – that would have authorized precisely the DHS seizures carried out. How exactly does the government begin enforcement of a bill that not only has not yet been signed into law, but that is in the process of being actively rejected?
The issue was discussed on CNET’s Buzz Out Loud podcast, which provided several of the links used in this post. Host Molly Wood has a particularly good take on the issue starting around the 10:14 mark; since it is a longish excerpt I have put the transcription after the main body. In it she references this article questioning the legality of the seizure on several grounds.
For instance, the seizure was announced (via) at Walt Disney Studios. Does DHS worry at all about seeming a little too cozy with private industry? With the seemingly endless examples of government officials leaving their posts and cashing in with companies who benefited from their tenure (here is this week’s), shouldn’t there be at least a gesture in that direction?
Or: ICE went before federal magistrate judges with goods “confirmed as counterfeit or otherwise illegal” in order to obtain the seizure orders. Did it have goods from each of the eighty-two sites? In at least one case – TorrentFreak – the site in question does not deal in goods at all. It provides search results for torrent files, just like Google does. Is Google going to be seized as well? Alternately, since it is literally impossible for ICE to have obtained any goods, legal or otherwise, from TorrentFreak, what evidence was presented to the presiding judge? What was the basis for the ruling?
Business rulings from the courts are starting to deserve much heavier scrutiny. Aside from the increasingly pro-industry bias of the Supreme Court, there are more and more cases where lower courts give corporations overwhelming preference over individuals. When a bank can legally engage in activity that would get an ordinary citizen charged with a felony, the legal system is not trustworthy. When it operates with the mindless corruption of A.C. Soud’s rocket docket, there is reason to be openly antagonistic towards it. The rulings from these magistrate judges do not deserve to be taken at face value or accepted in good faith. The current environment calls for exactly the opposite.
The very idea of an open Internet is coming under attack. In addition to the ICE seizures we now have Federal Communications Commission Chairman Julius Genachowski coming out with a regulatory model that does not reclassify broadband as a telecom service. This will ultimately squeeze both people and companies out of the wireless spectrum; the proposed NBC/Comcast merger threatens to wall off whole swaths of content, and Comcast is already demonstrating its willingness to drive prices higher once its monopoly is secure. And don’t even get me started on this. Under the circumstances, the ICE seizure represents another volley in the ongoing war to shrink the Internet down to a handful of broad, well lit boulevards, owned by multinationals and lined with security guards.
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Molly Wood excerpt from Buzz Out Loud 1359:
Well, and it is an EXTREMELY dangerous precedent to be set. This is sort of the worst example of intellectual property hysteria, potentially absolutely breaking the entire Internet. I mean it is just unbelievable. And the weird thing about it is, so it’s Homeland Security but it was the Immigrations and Customs Enforcement chief who announced it, I think, and took to the press to talk about American business being under assault from counterfeiters and pirates every day.
Tech Dirt has a pretty good takedown / take apart / teardown of his statement and also some pretty serious questions, which is like, under what legal mandate is a group that’s supposed to be focusing on immigration and customs getting involved in taking down web sites? And why is this a Homeland Security issue, and why isn’t there any due process here, and how is this not a violation of free speech to say, “you know what? We believe that at least some of the products on your web site are infringing, so we’re going to shut down the expression”?
I mean, it’s pretty remarkable, and by the way, has anybody been able to show substantial evidence, because it’s my understanding that even the government accounting office has been able to fairly easily take apart the RIAA and the MPAA’s claims of financial harm as a result of piracy and say “you know what? You actually don’t have any proof of significant losses of the types you have so hysterically claimed in the press.”