By Nate Anderson
At 9:30pm PST on February 11, US Immigrations and Customs Enforcement (ICE) seized the domain mooo.com. They ordered the domain name's registrar to redirect all traffic headed for mooo.com to a government IP address, one which displayed a single stark warning that the domain name had been seized for involvement with child pornography.
But the mooo.com domain name was shared between 84,000 sites; every one suddenly displayed the child pornography warning. The mistake was soon corrected, but the free domain name provider running mooo.com warned users that removal of the banner from their sites might "take as long as 3 days."
One outraged user took to his blog to tell ICE to "get out of my Internet. You'd get no argument from me that there are truly distasteful and illegal things on the Internet. That's true of any society. But there are also proper ways to deal with these problems. Pulling a total domain, sweeping up innocent people along the way, feeling that you don't have to comply with due process of law and indicating that you don't give a damn is wrong. It's not as wrong as child pornography or counterfeiting, but it's still wrong… That's to say nothing of any damage done to my name or reputation."
Mooo.com had been seized as part of ICE's Operation Protect Our Children (the better-known Operation: In Our Sites targets piracy and counterfeiting). To seize the site, an ICE agent had drawn up an affidavit which was signed off on by a federal magistrate judge—but neither the free DNS provider nor the actual site operator were notified in advance or given any chance to defend themselves. (Domain owners can sue the government to recover their sites later, if they wish.)
Rep. Zoe Lofgren (D-CA), who holds a law degree, is furious about the mistake. At a recent Congressional hearing, Lofgren grilled IP Czar Victoria Espinel about the incident and stood up for the 84,000 affected sites. "If I were them, I'd sue the department," she thundered.
Espinel insisted that "due process" was built into ICE's operations, which simply applied seizure law used in narcotics and other cases to Internet domains. Besides, no one whose domain had been seized had sued the government to get it back; the process, she said, was in fact snaring pirates.
Lofgren wasn't appeased. And while she's on the warpath against domain seizures, she also faces the specter of a related Web censorship bill called the Combating Online Infringement and Counterfeits Act (COICA). COICA allows the government to block websites, to prevent advertisers from working with websites, and to keep credit card companies from processing payments to blacklisted sites. It's Operation: In Our Sites on steroids.
Nevertheless, Senator Patrick Leahy (D-VT) has promised that COICA will become law this year.
Ars spoke to Lofgren about her opposition to both approaches, why a domain seizure isn't like a cocaine bust, and whether she can forge an alliance with big-government-fearing conservatives to derail COICA.
"They can seize Yahoo or Google or Facebook"
Ars: Could you articulate for our audience what your basic concerns are with the approach that ICE is taking with these domain names seizures?
Rep. Lofgren: Where do I start? First, I think that they [ICE] don't even have the authority to do what they're doing. Their effort to essentially seize—I think illegally—these domain names lacks due process, in some cases has violated the First Amendment rights of individuals.
I think I mentioned during the hearing the debacle with the mistaken domain name takedowns in the pornography effort where they basically slandered thousands of people by saying that their sites had been taken down as consequences of child pornography. Can you imagine as a small business person what that would do to your business, if you are completely innocent? It's a mess.
Their apparent complete disregard of the Digital Millennium Copyright Act remedies, where Congress laid out a scheme where you get notice and takedown—that's the way you deal with this. They never apparently even inquired about that.
Further, I think it's just stunning to think that they would believe that linking sites—they went after Torrent Finder. It's a search engine! What's that got to do with this? I mean, if they're right that they can simply seize that search engine, they can seize Yahoo or Google or Facebook.
Ars: On the question of linking sites [which host no infringing content], some of the people I talk to in the content industries will say, “Look, those aren't equivalent at all. The sites that were taken down were all about watching illegal TV broadcasts on the Internet, as opposed to Google, which has lots of non-infringing uses.”
Rep. Lofgren: Well, I don't think that's correct. The rule has been that you can't destroy legitimate businesses because you find among the legitimate business activity an infringing use. They've completely violated that. In the case of the domain name takedowns, they didn't even do the most basic inquiry, apparently. If you had Googled it, you would have seen non-infringing uses right away.
"You can't do that in America"
Ars: One of your objections is due process. The recording industry sent you a recent letter in which they claimed that there's plenty of due process here; Espinel made the case that these seizures are no different from seizure rules we have for all sorts of other property. What's your concern? Is it the non-adversarial nature of this procedure given the messiness of some of these cases?
Rep. Lofgren: That's it. You've got the prosecutors coming in, they have a judge sign something, and the people whose property is being seized are never heard from. It doesn't appear, honestly—though it would not solve the due process problems—that there's much inquiry on the part of the prosecution, either. Is there a fair use right? Is there an authorized use? Is there legitimate business going on? There's no opportunity for that to be raised, and once the damage is done, it's done.
I've not yet talked to some of the individuals, but we've had second-hand reports of people in the child pornography takedown whose businesses were essentially destroyed. There's hardly anything you can say. It's worse than accusing somebody of being a pedophile.
Ars: So how did these seizures differ from, say, narcotics seizures in which some of the same issues about a non-adversarial hearing apply?
Rep. Lofgren: You're never going to have a free speech issue when it comes to a pile of cocaine.
Ars: The recording industry also objected to the First Amendment concerns you raised, saying that the First Amendment is “not a shield for illegal behavior.”
Rep. Lofgren: They completely missed the point, and I would think intentionally so. This is prior restraint of speech, and you can't do that in America.
"A mistaken approach"
Ars: At the recent Congressional hearing, you said that you would like the government to go after larger commercial pirates instead. What sorts of targets did you have in mind?
Rep. Lofgren: It's not my job to be the prosecutor, but there are substantial, large-scale, company-to-company theft situations going on that basically they don't do anything about. And the reason why is that they have to spend some money. The big companies can go hire lawyers; these little mom and pops, they don't have the ability to contest this or go hire lawyers. It's easy to go after the small fry. It's not very important, but it's easy.
In the statute, the number one mission [of ICE] is to go after health and safety violations. I think that is a very serious matter. If you take a look at the potential counterfeit drugs that are available, things that really have the potential for doing physical harm to people, things that don't have any First Amendment issues whatsoever… they don't appear to be doing very much about that.
Ars: You've said that Web censorship (COICA) and domain name seizures aren't going to do anything about pirate sites because those just pop up again somewhere else. John Morton of ICE has made the case, however, that sites are going away and not re-emerging. Victoria Espinel said that no site has challenged its seizure so far. Could these approaches actually prevent piracy, or do you think their backers are simply mistaken?
Rep. Lofgren: I think they're mistaken. Take a look at the the [Torrent Finder] search engine seizure, for example. I don't think it's a pirate site, but they are back in business. Just think about it logically: if you're an actual pirate site, it's pretty easy to pop up again. If you are a legitimate business, the damage that's been done is a little bit different for you.
Ars: We spoke to Sen. Al Franken (D-MN) recently, who's interesting because he's a strong supporter of net neutrality, opposes media consolidation, but is on board with COICA. He says that it needs to be tweaked, but he likes the basic approach of getting people like payment processors and registrars involved in shutting down piracy. Could this basic approach, if tweaked, be useful?
Rep. Lofgren: You probably know from my fight against the banking industry on foreclosures and mortgages that I'm not particularly tight with the financial industry. But, they have just come in to talk to my staff about COICA. One of the things they said was that they have a procedure in place that they've established if someone believes that [credit card companies] are handling payments for infringers. In the last six months, they've had 30 complaints. I don't think, if you're Visa and you get 30 complaints in six months, that you need to completely turn due process and law enforcement on its head.
You know, these guys in the content industry, they came to us when I was in the Congress when we did the Digital Millennium Copyright Act. They wanted to go farther; at one point, the original draft outlawed Web browsing, which I thought was interesting.
We did the bill, and they're complaining. It's what they wanted, but it's not enough. Now they want to do something else, which is really pretty draconian, and I think out of step with the American tradition of due process. They're not using the remedies available to them right now, and if this passes, in a couple years they'll come back with something even more draconian. I don't have a lot of patience for that, really.
Ars: Sen. Patrick Leahy (D-VT) said that COICA would definitely pass this year. Will it?
Rep. Lofgren: I don't know. I think if the American people wake up to what this is, we might have a more vigorous debate. I think of some of my new colleagues on the Republican side and the Tea Party who are worried about big government overreach… I mean, check this out!
Ars: Have you been able to forge those sorts of alliances across party lines on issues like this?
Rep. Lofgren: No. It's March, and every time there's a one-day holiday, we take at least a week off. So it's not as though we've been here, but I hope that we can have a discussion. My attitude is: if you don't agree on everything, that is not an adequate excuse for failing to work on the things you could agree on.
I think Senator Leahy has many fine qualities. I like Senator Leahy. I don't agree with him on this. I think it's a mistaken approach.
Our thanks to Rep. Lofgren for taking the time to speak with us.
At 9:30pm PST on February 11, US Immigrations and Customs Enforcement (ICE) seized the domain mooo.com. They ordered the domain name's registrar to redirect all traffic headed for mooo.com to a government IP address, one which displayed a single stark warning that the domain name had been seized for involvement with child pornography.
But the mooo.com domain name was shared between 84,000 sites; every one suddenly displayed the child pornography warning. The mistake was soon corrected, but the free domain name provider running mooo.com warned users that removal of the banner from their sites might "take as long as 3 days."
One outraged user took to his blog to tell ICE to "get out of my Internet. You'd get no argument from me that there are truly distasteful and illegal things on the Internet. That's true of any society. But there are also proper ways to deal with these problems. Pulling a total domain, sweeping up innocent people along the way, feeling that you don't have to comply with due process of law and indicating that you don't give a damn is wrong. It's not as wrong as child pornography or counterfeiting, but it's still wrong… That's to say nothing of any damage done to my name or reputation."
Mooo.com had been seized as part of ICE's Operation Protect Our Children (the better-known Operation: In Our Sites targets piracy and counterfeiting). To seize the site, an ICE agent had drawn up an affidavit which was signed off on by a federal magistrate judge—but neither the free DNS provider nor the actual site operator were notified in advance or given any chance to defend themselves. (Domain owners can sue the government to recover their sites later, if they wish.)
Rep. Zoe Lofgren (D-CA), who holds a law degree, is furious about the mistake. At a recent Congressional hearing, Lofgren grilled IP Czar Victoria Espinel about the incident and stood up for the 84,000 affected sites. "If I were them, I'd sue the department," she thundered.
Espinel insisted that "due process" was built into ICE's operations, which simply applied seizure law used in narcotics and other cases to Internet domains. Besides, no one whose domain had been seized had sued the government to get it back; the process, she said, was in fact snaring pirates.
Lofgren wasn't appeased. And while she's on the warpath against domain seizures, she also faces the specter of a related Web censorship bill called the Combating Online Infringement and Counterfeits Act (COICA). COICA allows the government to block websites, to prevent advertisers from working with websites, and to keep credit card companies from processing payments to blacklisted sites. It's Operation: In Our Sites on steroids.
Nevertheless, Senator Patrick Leahy (D-VT) has promised that COICA will become law this year.
Ars spoke to Lofgren about her opposition to both approaches, why a domain seizure isn't like a cocaine bust, and whether she can forge an alliance with big-government-fearing conservatives to derail COICA.
"They can seize Yahoo or Google or Facebook"
Ars: Could you articulate for our audience what your basic concerns are with the approach that ICE is taking with these domain names seizures?
Rep. Lofgren: Where do I start? First, I think that they [ICE] don't even have the authority to do what they're doing. Their effort to essentially seize—I think illegally—these domain names lacks due process, in some cases has violated the First Amendment rights of individuals.
I think I mentioned during the hearing the debacle with the mistaken domain name takedowns in the pornography effort where they basically slandered thousands of people by saying that their sites had been taken down as consequences of child pornography. Can you imagine as a small business person what that would do to your business, if you are completely innocent? It's a mess.
Their apparent complete disregard of the Digital Millennium Copyright Act remedies, where Congress laid out a scheme where you get notice and takedown—that's the way you deal with this. They never apparently even inquired about that.
Further, I think it's just stunning to think that they would believe that linking sites—they went after Torrent Finder. It's a search engine! What's that got to do with this? I mean, if they're right that they can simply seize that search engine, they can seize Yahoo or Google or Facebook.
Ars: On the question of linking sites [which host no infringing content], some of the people I talk to in the content industries will say, “Look, those aren't equivalent at all. The sites that were taken down were all about watching illegal TV broadcasts on the Internet, as opposed to Google, which has lots of non-infringing uses.”
Rep. Lofgren: Well, I don't think that's correct. The rule has been that you can't destroy legitimate businesses because you find among the legitimate business activity an infringing use. They've completely violated that. In the case of the domain name takedowns, they didn't even do the most basic inquiry, apparently. If you had Googled it, you would have seen non-infringing uses right away.
"You can't do that in America"
Ars: One of your objections is due process. The recording industry sent you a recent letter in which they claimed that there's plenty of due process here; Espinel made the case that these seizures are no different from seizure rules we have for all sorts of other property. What's your concern? Is it the non-adversarial nature of this procedure given the messiness of some of these cases?
Rep. Lofgren: That's it. You've got the prosecutors coming in, they have a judge sign something, and the people whose property is being seized are never heard from. It doesn't appear, honestly—though it would not solve the due process problems—that there's much inquiry on the part of the prosecution, either. Is there a fair use right? Is there an authorized use? Is there legitimate business going on? There's no opportunity for that to be raised, and once the damage is done, it's done.
I've not yet talked to some of the individuals, but we've had second-hand reports of people in the child pornography takedown whose businesses were essentially destroyed. There's hardly anything you can say. It's worse than accusing somebody of being a pedophile.
Ars: So how did these seizures differ from, say, narcotics seizures in which some of the same issues about a non-adversarial hearing apply?
Rep. Lofgren: You're never going to have a free speech issue when it comes to a pile of cocaine.
Ars: The recording industry also objected to the First Amendment concerns you raised, saying that the First Amendment is “not a shield for illegal behavior.”
Rep. Lofgren: They completely missed the point, and I would think intentionally so. This is prior restraint of speech, and you can't do that in America.
"A mistaken approach"
Ars: At the recent Congressional hearing, you said that you would like the government to go after larger commercial pirates instead. What sorts of targets did you have in mind?
Rep. Lofgren: It's not my job to be the prosecutor, but there are substantial, large-scale, company-to-company theft situations going on that basically they don't do anything about. And the reason why is that they have to spend some money. The big companies can go hire lawyers; these little mom and pops, they don't have the ability to contest this or go hire lawyers. It's easy to go after the small fry. It's not very important, but it's easy.
In the statute, the number one mission [of ICE] is to go after health and safety violations. I think that is a very serious matter. If you take a look at the potential counterfeit drugs that are available, things that really have the potential for doing physical harm to people, things that don't have any First Amendment issues whatsoever… they don't appear to be doing very much about that.
Ars: You've said that Web censorship (COICA) and domain name seizures aren't going to do anything about pirate sites because those just pop up again somewhere else. John Morton of ICE has made the case, however, that sites are going away and not re-emerging. Victoria Espinel said that no site has challenged its seizure so far. Could these approaches actually prevent piracy, or do you think their backers are simply mistaken?
Rep. Lofgren: I think they're mistaken. Take a look at the the [Torrent Finder] search engine seizure, for example. I don't think it's a pirate site, but they are back in business. Just think about it logically: if you're an actual pirate site, it's pretty easy to pop up again. If you are a legitimate business, the damage that's been done is a little bit different for you.
Ars: We spoke to Sen. Al Franken (D-MN) recently, who's interesting because he's a strong supporter of net neutrality, opposes media consolidation, but is on board with COICA. He says that it needs to be tweaked, but he likes the basic approach of getting people like payment processors and registrars involved in shutting down piracy. Could this basic approach, if tweaked, be useful?
Rep. Lofgren: You probably know from my fight against the banking industry on foreclosures and mortgages that I'm not particularly tight with the financial industry. But, they have just come in to talk to my staff about COICA. One of the things they said was that they have a procedure in place that they've established if someone believes that [credit card companies] are handling payments for infringers. In the last six months, they've had 30 complaints. I don't think, if you're Visa and you get 30 complaints in six months, that you need to completely turn due process and law enforcement on its head.
You know, these guys in the content industry, they came to us when I was in the Congress when we did the Digital Millennium Copyright Act. They wanted to go farther; at one point, the original draft outlawed Web browsing, which I thought was interesting.
We did the bill, and they're complaining. It's what they wanted, but it's not enough. Now they want to do something else, which is really pretty draconian, and I think out of step with the American tradition of due process. They're not using the remedies available to them right now, and if this passes, in a couple years they'll come back with something even more draconian. I don't have a lot of patience for that, really.
Ars: Sen. Patrick Leahy (D-VT) said that COICA would definitely pass this year. Will it?
Rep. Lofgren: I don't know. I think if the American people wake up to what this is, we might have a more vigorous debate. I think of some of my new colleagues on the Republican side and the Tea Party who are worried about big government overreach… I mean, check this out!
Ars: Have you been able to forge those sorts of alliances across party lines on issues like this?
Rep. Lofgren: No. It's March, and every time there's a one-day holiday, we take at least a week off. So it's not as though we've been here, but I hope that we can have a discussion. My attitude is: if you don't agree on everything, that is not an adequate excuse for failing to work on the things you could agree on.
I think Senator Leahy has many fine qualities. I like Senator Leahy. I don't agree with him on this. I think it's a mistaken approach.
Our thanks to Rep. Lofgren for taking the time to speak with us.
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