Over six months after the United States Department of Homeland Security (DHS) began their “Operation in our Sites” initiative, in which they’ve seized nearly 100 allegedly copyright infringing web domains without warning or due process, one senator has finally taken notice and begun to question whether the process violates First Amendment free speech rights.
Oregon Senator Ron Wyden, who has also spoken out against the Combating Online Infringement and Counterfeits Act (COICA), has penned a letter to ICE Director John Morton expressing concern and raising a series of tough questions regarding the legality of the process used to seize the domains, the financial implications of the operations, and if the actions violate foreign policy.
The questions presented in Wyden’s letter are as follows:
1. 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?
2. 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?
3. What is the process for selecting a domain name for seizure and, specifically, what criteria are used?
a. Does the Administration make any distinction between domain names that are operated overseas and those that are operated in the U.S.?
b. Does the Administration consider whether a domain name operated overseas is in compliance with the domestic law from which the domain name is operated?
c. What standard does the Administration use to ensure that domains are not seized that also facilitate legitimate speech?
d. 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?"
4. 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?
5. 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?
6. 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?
7. 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?
8. 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.
9. 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?
10. 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?
It’s refreshing to see a prominent US politician finally asking the same questions of his government leaders that we’ve been asking for months. Unfortunately, whether those leaders answer remains to be seen, and the damage to the business owners affected by Operation in Our Sites has already been done. Hopefully, someone in Washington will take Wyden’s concerns to heart before these highly questionable actions touch anyone else.
