ICE Declares 'Mission Accomplished' On Domain Seizures

 

 

It appears that assistant deputy director of ICE, Erik Barnett, is going around talking up the massive success of ICE's potentially illegal domain seizure regime. Barnett speaking in Stockholm, where he bragged about just how successful the program has been, making a series of highly questionable claims:

"People told us that we will fail if we seize these domain names, and that we’ll look foolish," said Erik Barnett, assistant deputy director of the US government’s Immigration and Customs Enforcement (ICE) team, which began conducting Operation In Our Sites last year. "People said [that the infringers] would come back. But the reality is they didn’t – that was surprising."

I can't tell if Barnett is just totally and completely uninformed here... or lying. As plenty of people have noted, at least on the copyright side, the vast majority of the sites have reappeared, often within hours.

Barnett also makes this highly questionable claim:

"The notice says that you can challenge the seizure, but no one has yet," he added.

Yeah, that's because the US government has made it incredibly convoluted and difficult to actually challenge the seizure. While Barnett notes that the notice says you can, there is no process, and the Justice Department has done everything it can to avoid letting anyone challenge the seizure.

But the point of his speech seemed to be to suggest that other countries follow suit and begin censoring websites with no trial as well. Isn't that nice, when US officials promote censorship in other countries?

Separately, Barnett spoke to The Bureau of National Affairs (BNA) for an interview about the seizures. Unfortunately, it's totally locked up behind a paywall, but someone (anonymously) sent me a copy, and I'd like to highlight some of Barnett's more ridiculous statements there as well. He kicks it off by again thanking Congress for passing the ProIP Act, which snuck the seizure bit into law, with most people believing it meant seizing actual tools of infringement, not domain names. From there, he discusses how ICE decides what to seize:

The popularity of the website, because how popular a website is tells us how profitable. We look at a website's Alexa rankings, because the lower the Alexa ranking--meaning the more traffic a website receives--directly correlates to higher proceeds from sales, or to more revenue from advertisements.

Alexa?!? My goodness. Alexa is perhaps the least accurate website ranking system out there and is considered a total joke. Do a Google search on Alexa rankings suck, and you get nearly 34 million results. They're not even close to accurate. This does not build confidence in ICE's technological knowhow. Alexa is to website rankings what the original AOL was to the internet. It's training wheels, but not an accurate representation. Furthermore, higher popularity often does not mean greater revenue, but again, ICE is demonstrating its cluelessness about internet business models.

Whether the website is commercial in nature: We only go after websites that run advertisements, or sell subscriptions or merchandise. We are not looking at community forums or chat rooms. Rather, we are looking for websites that are making a substantial amount of money from these websites.

This is also totally bogus. Any site can run ads, but often those ads barely cover server fees. Does that really make it a "commercial" enterprise? And he's wrong when he says they're not looking at community forums or chat rooms, because at least some of the domains seized were for community forums. And as for "substantial amount of money," again that's difficult to fathom. In the various affidavits used to seize these sites, the info they received about ad revenue suggested miniscule amounts -- maybe a few hundred per month, which probably barely covered hosting, if at all. In the one actual lawsuit filed, the evidence suggested a grand total of $90,000 made in ad revenue over five years, or less than minimum wage. How is that "substantial amounts of money"?

Also interesting is that he explains how they're simply researching sites recommended by rights holders and choosing who to go after:

Once that referral is made, there will be some initial follow up by an ICE agent to see if the site falls into those general categories of what we are looking for. If it is a site that meets the criteria, what we will do is start an undercover criminal investigation, and ultimately the agent will look at the site and—working within the statutes, 18 U.S.C. Section 2319 and Section 2320—they will look at whether this is a site that is going to meet those factors.

The Justice Department then will also then have an opportunity to look at the site through the evidence that is presented either to an Assistant U.S. Attorney, or to a Justice Department trial attorney, and they will make a determination of whether or not the site meets their standards for prosecution. And then ultimately we will present that evidence to a federal magistrate judge.

He then suggests that they're seizing over 50% of the domains that have been submitted by rights holders! He claims that in the second round of seizures, for 77 URLs, they had received requests to look at 130, but only seized 77. This seems bizarre. He seems to take the default position that if a rightsholder complains about a site, it must be infringing, and he wishes they could seize more.

No wonder they seized so many sites in error. ICE seems to come at this from not just a technologically clueless position, but also one where they automatically assume that the rightsholder is right. Who knew ICE's mission was to prop up failing business models?

Towards the end of the interview, he's finally asked about the fact that so many of these sites popped right back up. And Barnett tries to turn this into a claim that it shows how successful ICE has been.

What may sound odd is that from a law enforcement perspective, that actually is also a metric of success. There was some general complacency on the part of the criminals who were engaging in trademark and copyright infringement without really any threat of enforcement. You now have individuals who have to spend more time and more money on work around or diversions.

Once again, this either shows Barnett blowing smoke, or being technologically clueless. Most of these sites popped back up pretty quickly. Getting a new domain is pretty cheap and fast.

To be honest, I'm pretty disappointed that BNA -- an excellent publication -- failed to ask the serious questions about the constitutionality of the seizures, and the fact that they appear to violate basic due process and prior restraint issues found in the case law. I'm sure Barnett would have brushed off those questions, but you get the feeling sometimes that the folks at the top of ICE haven't even considered these things.

 

o