TECHDIRT:We've been talking a lot about Senator Ron Wyden lately, as he appears to be one of the few folks left in Washington DC who seem to actually care about overreaching efforts by law enforcement -- especially in the area of copyright. We've talked about his efforts to block COICA, question ACTA and require more oversight on government spying. He's also not been shy about standing up for what he believes in, even when corporate interests start pressuring him, such as his eloquent response to companies who urged him to support censorship via COICA. And, now, he's come out expressing serious concern about the recent domain name seizures done by Homeland Security's Immigration and Customs Enforcement (ICE) group. In a letter sent to Attorney General Eric Holder and ICE director John Morton (embedded below), Senator Wyden raises numerous questions, and it's clear that he thinks ICE has gone way beyond what is reasonable and legal. Many of the points in his letter seem to come directly from issues we've raised here on Techdirt -- including (specifically) the fact that all of the music used to seize the dajaz1.com domain were sent by music industry or artist representatives. He also seems quite concerned about who is driving these seizures, and if it's just companies trying to "create competitive advantages in the marketplace."
The letter highlights that we already have a process in the DMCA that lets copyright holders target and remove infringing content, and do so in a way "without impinging on legitimate speech that the website may also facilitate." He also is clearly concerned about the lack of due process and the fact that these seizures do "not appear to give targeted websites an opportunity to defend themselves before sanctions are imposed." He also notes that there's still a "contentious legal debate about when a website may be held liable for infringing activities by its users" -- a point that ICE continues to seem to think is settled law, when it is anything but. In fact, he notes: "I worry that domain name seizures could function as a means for end-running the normal legal process in order to target websites that may prevail in full court." Finally, he points out that the whole thing is "alarmingly unprecedented in breadth of its potential reach."
From there, he lists out a series of questions that he wants Holder and Morton to answer:
How does ICE and DoJ measure the effectiveness of Operation In our Sites and domain seizures more broadly -- how does the government measure the benefits and costs of seizing domain names?
Of the nearly 100 domain names seized by the Obama Administration over the last 9 months, how many prosecutions were initiated, how many indictments obtained, and how were the operators of these domain names provided due process?
What is the process for selecting a domain name for seizure and, specifically, what criteria are used?
Does the Administration make any distinction between domain names that are operated overseas and those that are operated in the U.S.?
Does the Administration consider whether a domain name operated overseas is in compliance with the domestic law from which the domain name is operated?
What standard does the Administration use to ensure that domains are not seized that also facilitate legitimate speech?
What standards does ICE use to ensure that it does not seize the domain names of websites the legal status of which could be subject to legitimate debate in a U.S. court of law; how does ICE ensure that seizures target on the true "bad actors?"
Does the Administration believe that hyperlinks to domain names that offer downloadable infringing content represent a distribution of infringing content, or do they represent speech?
Does the Administration believe that websites that facilitate discussion about where to find infringing content on the Internet represents speech or the distribution of infringed content? What if the discussion on these websites includes hyperlinks to websites that offer downloadable, infringing content?
What standard does DoJ expect foreign countries to use when determining whether to seize a domain name controlled in the U.S. for copyright infringement?
Did DoJ and ICE take into account the legality of Rojadirecta.org before it seized its domain name? If so, did DoJ and ICE consult with the Department of State or the United States Trade Representative before seizing this site in order to consider how doing so is consistent with U.S. foreign policy and commercial objectives?
In an affidavit written by Special Agent Andrew Reynolds, he uses his ability to download four specific songs on the domain name dajaz1.com as justification for seizure of this domain name. According to press accounts, the songs in question were legally provided to the operator of the domain name for the purpose of distribution. Please explain the Administration's justification for continued seizure of this domain name and its rationale for not providing this domain name operator, and others, due process.
Can you please provide to me a list of all the domain names seized by the Obama Administration since January of 2009 and provide the basis for their seizure?
Do ICE and DoJ keep a record of who meets with federal law enforcement about particular domain names? If not, would you consider keeping such a record and making it publicly available, to ensure transparency in government and that Operation in our Sites is not used to create competitive advantages in the marketplace?
He basically seems to hit on all of the key points, so it'll be interesting to see how Holder and Morton reply, but given their existing responses in various speeches, it's not hard to predict that they'll sidestep most of these questions, and go with something along the lines of "infringement bad! danger danger!" Either way, kudos (again) to Senator Wyden for being one of the few politicians left who really does appear to care about free speech and due process.
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