by Dana Tierney, Senior Editor, Fusion Authority
The US government recently seized 84,000 sites by mistake, sending the sites' visitors to a notice warning of criminal penalties for possessing child pornography. The sites had no connection to child pornography.
It took some sites three days to regain control of their web traffic, redirected by changes to the DNS entries for their site names. Changes to reverse the error had to propagate across the web. Until they did, the unfriendly notice continued to greet their visitors.
Operation Protect Our Children, a joint operation of the Department of Justice (DOJ) and of the CyberCrimes Center of Immigration and Customs Enforcement (ICE), did announce shutdown of ten sites, without mention of the 84,000 quietly allowed to return online. It eventually said it would review its procedures. The utter lack of judicial review may get addressed. It remains to be seen. News coverage of past domain seizures in operations against copyright infringement certainly did note the flaw.
ICE paid contractor immixGroup seven million dollars for this fine work. Time's Techland blog speculated that the agency believed that one or perhaps several mooo.com subdomains using FreeDNS servers trafficked in child pornography, and redirected the entire mooo.com domain and all of its subdomains to the notice. It's unclear how much evidence the agency had of wrongdoing, or whether they or their contractor realized beforehand how many uninvolved sites they would also redirect, and if not, how much they really investigated before acting.
Nor is it clear whether the agency understands the social and technical dangers of casual DNS changes to the integrity of the internet. Users can still reach closed sites using an IP address if they remain online. Perhaps ICE does not know that.
The court documents filed in one round of seizures do seem to show fundamental lack of internet literacy, coupled with heavy reliance on industry assertions and serious errors of fact, described below:
"By seizing the SUBJECT DOMAIN NAMES and redirecting them to another website," they say in part, "the Government will prevent third parties from acquiring the names and using them to commit additional crimes. Furthermore, seizure of the SUBJECT DOMAIN NAMES will prevent third parties from continuing to access the five websites listed above." Access was not prevented at all. The sites remained online for anyone able to look up their IP addresses and quickly registered their domains with other extensions in the jurisdiction of other countries.
The affidavit filed by the agency also cites as evidence of criminality activity links to news articles about pirated movies and about "The COICA Internet Censorship and Copyright Bill" (COICA), a proposed law to ratify domain seizures.
More about that law later; it's uncertain whether repeated attempts to pass it mean that the seizures are not legal now but happen despite their illegality, or what the need for the law might otherwise be. It does create a blacklist system, ignoring the lessons of Hollywood's McCarthy blacklist.
The operator of dajaz1.com, whose site still redirects to the government notice, showed a New York Times reporter emails from the artists and record labels who sent him the music he's accused of using without permission. Another reporter confirmed that all four of the songs the affidavit cites as infringement did seem to be used with permission.
In 2010, ICE launched Operation in our Sites, seizing domains it claimed belonged to Internet movie pirates. Media coverage and comment at the time warned of the lack of legal process. "The one-sided process means that mistakes and overbroad name seizures are inevitable, which in turn will impair lawful speech," said David Sohn of the Center for Democracy and Technology after a round of seizures that included Rojadirecta.org , a Spanish sports site whose streams were already ruled legal in Spain, where it operates. The site re-registered as rojodirecta.eu and remains in operation today.
[Reporter's Note: To my knowledge, .org sites are not under US jurisdiction so I suspect that this may have been rojadireta.com, but many, many reports say .org. If true, the way this took place may be its own story. If anyone knows I would appreciate clarification.]
Two more sites, onSMASH and RapGodfathers, told MTV blog Rapfix that they received no notice or complaint before the shutdowns, and always responded to infringement complaints. The labels themselves provided much of its material, onSMASH said. An agency statement disputing the sites' responsiveness airily said they can defend themselves in court. They themselves will have to make that happen, however. Ars Technica reports that the California court that issued the seizure orders has closed the cases. The government is not prosecuting the site owners.
Meanwhile, the operations appear to have little effect on the agencies' announced goals.
Torrent-finder.com still operates at torrent-finder.info. Hof, who operates the onSMASH site, set his twitter status to advise readers of his new location:"it's #FreeOnSMASH 'til they free OnSMASH." Dajaz1 promises to return at dajaz.org, and RapGodfathers.info is online today, also after using Twitter to advise readers of the change. Domain seizures of sports streaming sites just before the Superbowl also did not keep them from operating elsewhere. If these sites really are an important and integral part of a copyright violations problem RIAA CEO Mitch Bainwol has called
"devastating," then the devastation continues.
It is also unclear why the risk of using US authority over the .com and .net top-level domains for copyright enforcement or even against child pornography promotes US interests, given existing controversy over its use of this jurisdiction. The agency may or may not have considered simple retaliation by other countries, or even that some countries will gleefully follow the US' example. For example, Libya controls the .ly domain, used in bit.ly.
ICE announced Operation in Our Sites, the first seizures of domains hosting pirated movie content, from a Los Angeles sound stage to thunderous applause from industry representatives at their side. Sites selling counterfeit designer goods were later seized, Attorney-General Eric Holder noted happily,
"as the holiday shopping season gets underway." Sports streaming sites? Conveniently tidied up just in time for the Superbowl.
The DOJ has become a pro bono lawyer for copyright holders, as it warned it might under the last administration after the Enforcement of Intellectual Property Rights Act, one of Senator Leahy's prior efforts in copyright law, cleared his committee. The revolving door between RIAA and DOJ, as evidenced by President Obama's selection of Tom Perrelli and other lawyers who have worked for the RIAA for posts in the Department of Justice, may blind the administration to the consequences of these policies.
However, an administration that promised to listen has certainly been warned. Coverage of the domain seizures, initially a few puzzled posts on filesharing blogs, has grown and spread. Copyright law is all fun and games until your business goes poof because an ICE agent does not understand search results. Worse, seizure documents seem to say that it wouldn't matter if he did — just linking to infringing content is apparently grounds for seizure under this policy.
In a chilling sign of the way the wind blows, Google now prevents its Instant feature from suggesting torrent sites. We do not know whether content providers asked for the change.
Both in the last legislative session and again in this one, Leahy introduced COICA, a new copyright bill that mandates domain shutdowns for copyright infringement. On the matter of COICA, the Electronic Frontier Foundation said:
"Although it is ostensibly focused on copyright infringement, an enormous amount of noninfringing content, including political and other speech, could disappear off the Web if it passes." A single Senator, Ron Wyden of Oregon, blocked its passage in both sessions. Ron Wyden's letter to ICE is available online and raises many of the same concerns as the EFF.
Last fall, the bill drew an open letter from internet thinkers and engineers warning that the proposal wouldn't work and might endanger internet security and functionality. David Ulevitch, founder of OpenDNS, pointed out in December that while the law would create parallel blacklists compiled by the Attorney-General and the DOJ, it would not provide a mechanism for getting off the lists, even for sites added in error.
US law on copyright is becoming increasingly punitive. One public policy blog warned in 2008 after passage of an earlier bill that sites could
"simply be lawyered out of business." Needing a lawyer is apparently no longer even a concern.
"If the United States government increases interference in critical DNS infrastructure to police alleged copyright infringement, it is very likely that a large percentage of the Internet will shift to alternative DNS mechanisms that are located outside the US. This will cause numerous problems — including new network security issues, as a large percentage of the population moves to encrypted offshore DNS to escape the censoring", the EFF warned.
Dana Tierney is the Senior Editor at House of Fusion, where she causes authors to cry over their once-thought perfect articles. They recover, and their articles are better for it. But still, the sound of grown men weeping...