Four Rounds of ICE Domain Name Seizures and Related Controversies and Opposition

Published On
February 23rd, 2011

The Immigrations and Customs Enforcement (ICE), under the Department of Homeland Security, engaged in another round of domain name seizures Valentine’s Day, February 14, 2011. The 18 domain name seizure, “Operation Broken Hearted,” focused on counterfeit sites for selling counterfeit luxury product brands such as Tiffany, Burberry and Channel. As with previous rounds, magistrate judges provided authorization for the domain name seizure once the website’s goods were confirmed as being illegal. “Operation Broken Hearted” is the fourth phase of “Operation in Our Sites,” led by the National Intellectual Property Rights Coordination Center of ICE (IPR). The investigation targets “.com” websites that illegally provide counterfeited or pirated goods.

The first seizure, in June 2010, targeted nine movie, music and software websites. The second and third rounds presumably were “crackdowns” in expectation of high levels of internet traffic on Cyber Monday and Super Bowl Sunday. In November 2010, there was a one-day seizure of 82 domain names in both the counterfeit retail and music industries. Five of the sites, rapgodfathers.com, torrent-finder.com, rmx4u.com, dajaz1.com and onsmash.com, were suspected of facilitating copyright infringement in relation to BitTorrent filesharing or hosting music for download. In early February 2011, prior to the Super Bowl, the agency seized ten more domain names which engaged in sportscast streaming. In response to the seizures, many websites resumed operations with domain names outside of the United States jurisdiction or opting for “.org” or “.info” names.

Consumer protection is offered as the major policy rationale for ICE’s seizures. John Morton, ICE Director, commented that “[t]hese counterfeits represent a triple threat by delivering shoddy, and sometimes dangerous, goods into commerce, by funding organized criminal activities and by denying Americans good-paying jobs. HSI and our partners at the IPR Center will continue to work together to keep counterfeit products off our streets” (quoted in Operation Broken Hearted Protection From Counterfeit Valentine’s Day Goods). The November and February seizures also served to protect consumers, as music and sports industries pass off their losses from copyright infringement and illegal streaming to fans. The controversy over the agency actions stems from ICE’s procedure for the seizures. Post-seizure, the former domain name owner may petition the district court that issued the order, but there is no process for responding to the charges based on ICE investigations prior to the seizure. For instance, the owner of dajaz1.com, a hip hop blog, argued that he was not committing copyright infringement, but had no opportunity to avoid the seizure. The author claimed that record label executives and artists sent him the songs that he hosted on his site, and he had emails proving that the distribution was authorized. A related issue is the legitimacy of the ICE investigations and the basis for the practice itself. The only evidence supporting the November affidavit is allegedly a figure of the cost of piracy given in a 2009 speech from Dan Glickman, the then head of MPAA, based on figures from the music industry. Critics of ICE’s seizure tactics argue that the accuracy of the two-year old figure was never investigated. Senator Wyden wrote a letter to ICE calling its tactics “alarmingly unprecedented.” Wyden also raised the concern that this might not be solely for protecting consumers, but to create competitive advantage. Wyden asked for the “[a]dministration’s justification for continued seizure of this domain name and its rationale for not providing this domain name operator, and others, due process.” Beyond the possible constitutional issues Wyden mentioned, the proposed Combating Online Infringements Act may impermissibly extend beyond the national borders into the international stage. The Act would “give the Department of Justice an ‘expedited process’ for cracking down on websites that illegally make copyrighted material available, including the ability to ‘prevent the importation into the United States of goods and services offered by an Internet site dedicated to infringing activities.'” One example of an existing intrusion of sovereignty occurred in the second round of seizures in November when ICE seized Rojadirecta.org, a sports site held to be a legal website by Spanish courts on two occasions. The agency may have a desire to protect consumers from foreign websites. Steve Tepp, ICE senior director for Internet counterfeiting and piracy, explains that “their jurisdiction is limited to the United States…” However, Tepp argues that “[w]e need legislation to provide enhanced remedies to cut off foreign rogue sites from the U.S. market, where they threaten consumers…” From an international relations perspective, some worry that foreign countries will be inclined to reciprocate that attitude by seizing U.S.-based sites. Additionally, some claim that several of the sites whose domains were seized only offered links to other sites that may have hosted infringing content, which may not be illegal by itself. In an American Public Media radio program interview, the Homeland Security Special Agent in charge of the raids could not explain how Google would avoid liability for criminal copyright infringement under the theory that linking to infringing material constitutes criminal infringement. See YouTube v. Viacom. While the immediate impact of ICE’s seizures may be beneficial for our domestic suppliers and consumers, “[t]here is tremendous concern about the climate of fear and uncertainty this is going to create,” especially among domain name owners, in the implementation and procedure surrounding ICE’s actions, according to Peter Eckersley of the Electronic Frontier Foundation.

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