
Further Freedom Attacks - daeken
http://daeken.com/further-freedom-attacks
======
tptacek
People are having a hard time understanding how this could be happening.
Perhaps these people don't get out much. What's happening here is simple: the
federal government is using Civil Asset Forfeiture for IP/copyright
enforcement.

Particularly when armed with a court order, the government has broad authority
to seize property that can either be traced to the proceeds of a crime, or
that can be shown to be used in furtherance of a crime. This comes up _all_ \-
_the_ \- _time_ in drug enforcement, where the police use it to seize vehicles
used to run drugs. All that appears to be happening here is that the
government is applying it to copyright enforcement.

The Libertarian magazine Reason has been covering the increased use (and
misuse) of civil asset forfeiture for years now. It ticked up during the Bush
years, and has been validated multiple times during the Obama presidency.

In particular, note that there _are_ due process protections with strict
statutory timelines attached to them for challenging civil seizures. One
doubts many of these enterprises will avail themselves of those procedures;
most would probably lose, and it's simpler just to host offshore.

"Why, oh why, is DHS and ICE doing the RIAA's work for them?" Because it's
part of their charter. The "C" in ICE stands for Customs. Customs deals with
counterfeiting (it's an importation issue), and hosts a large IPR enforcement
division. No, the RIAA has not wheedled its way into DHS and refocused
homeland security on copyright enforcement.

Civil asset forfeiture can get very sketchy. I wish there were more bright-
line limitations on what the government can and can't do with it. The
impression that I have is that in the majority of cases where it's applied,
you generally want LEO's to have the power to seize what they're seizing. But
every once in awhile, they pull some 60 year old guy over with the cash down
payment he was going to make for his new pickup truck, declare him a drug
dealer, and end up pocketing the cash because he can't find a lawyer. _That's_
a miscarriage of justice. In light of it, I have a hard time feeling too sorry
for people who lose their pirate music storefront sites.

I like 'daeken (I work with him!), and I know and respect that he has a very
different take on intellectual property than I do, but his take on this seems
a bit breathless.

~~~
joe_the_user
A. Do you have any references/evidence saying that this is the legal doctrine
being used?

B. Civil Forfeiture is indeed evil and dubious. IF it were expanded and
applied to everything to which one could imagine, we would indeed be living in
dictatorship. It's kind of a bleeding whole in rule-of-law, one that hasn't
been expanded too much recently - I could only wildly speculate that they
hadn't wanted negative attention for it. In any case, this is a good reason to
be against it.

~~~
tptacek
If you read the story, look at the landing page ICE set up on the seized
domains, and then Google the two US Code references on that page, you'll see
they were both civil forfeiture statutes.

You write as if your understanding of asset forfeiture was "the government can
simply take whatever it wants whenever it wants". That isn't the case at all.
It's called "civil" forfeiture because the government is suing for the
property. There's a court case and everything. It is, essentially, _the exact
opposite_ of what the article we're commenting on claims it is.

~~~
joe_the_user
_You write as if your understanding of asset forfeiture was "the government
can simply take whatever it wants whenever it wants". That isn't the case at
all. It's called "civil" forfeiture because the government is suing for the
property._

Taking "whatever they can get away with" is quite different from "whatever
they want".

Whether authorized by a judge or not, a procedure involving "take first then
you've got to sue us", is a violation of the basic rule of law - the
requirement to face your accuser _before_ any property can be taken. This goes
back to the constitution and even the Magna Carta.

I mean, There was no service or trial in the situation described. Judge-
authorization for lawless act is just a dodge Otherwise, we'll go the system
of "Judge Dred" ("Judge, Jury and executioner")
<http://en.wikipedia.org/wiki/Judge_Dredd>

~~~
hga
See my other comment in this thread. It's "all right" because it's the
property being sued, i.e. the domain name itself, not the holder of the domain
name (yes, you read that correctly). That's how they get away without due
process for the holder, it's irrelevant since they're officially a 3rd party.

I'm sure the domain name was properly impressed by the judge's warrant when it
surrendered to the US Marshals or whomever.

~~~
tptacek
It's simply not correct to assert that the property owner has no due process
rights. You obviously don't approve of the specific process accorded to
property owners, but words mean things.

~~~
hga
I mean due process in the seizure. They're allowed to contest the seizure
afterward.

~~~
tptacek
In much the same sense as they're allowed to contest an arrest... after
they're arrested.

------
nodata
I find situations like this _extremely_ difficult to understand. I really
don't get it _at all_.

Either we have a system where you are innocent until proven guilty, have a
right to a fair trial, good evidence has to exist, you have a right to
privacy, a right to trial by jury, no corruption, no torture, etc. etc. or we
don't. That's it.

We are continually chasing our tail re-asking questions about when each of
these things is appropriate and when they are not. So here's my solution: we
make a list. Each time people ask these same questions again and again and
again, we point at the list. It'd save billions of dollars too, I bet.

~~~
cookiecaper
It's the perpetuation of a fraud. Even if we presume our people were committed
to these ideas, which they aren't anymore, the commitment quickly erodes once
_you_ become the one with the power to "expedite" or skirt these protections.
Until the character of all those involved in government is pure, government is
going to attempt to make "special exceptions" (read: not really that special)
and fear monger the whole way so that people stay off their backs.

It is crucial to the preservation of our liberties that The People frequently
reassess how well we are following these principles and that they exert their
sovereign authority to ensure that they are followed by our representatives
and administrators as closely as possible.

Now, does our populace do this anymore? I don't think they do. I think they
are mostly concerned with and distracted by social issues (which are
important, but have become a huge distraction to all other forms of policy)
and let everything else slide until Glenn Beck or Keith Olbermann feign
outrage to further political or commercial agenda.

It's all a lost cause in my opinion. The People are corrupt and the Government
is certainly corrupt. What can we do now? We just have to wait for the
inevitable implosion.

~~~
daeken
> It's all a lost cause in my opinion. The People are corrupt and the
> Government is certainly corrupt. What can we do now? We just have to wait
> for the inevitable implosion.

You know, you're probably right. In all likelihood, it's going to get _much_
worse before it gets any better. But that doesn't mean we shouldn't strive to
make it better. We may fail, but at least we tried.

~~~
Estragon

      We may fail, but at least we tried.
    

That's the main thing, isn't it? </sarcasm>

~~~
AndyKelley
I don't appreciate this type of humor, but Estragon is correct. A programmer,
especially of the startup nature, should know this fact all too well:

In the real world it's not about how hard you tried, it's about results. Work
smarter, not harder.

~~~
daeken
It's not the fact that you tried that's important. It's that if you try, you
have at least some chance of success; if you don't try, then failure is
implied.

------
anigbrowl
Lost in the fuss over this is the fact that ICE (Immigration & Customs
Enforcement) did in fact get a warrant for these and previous domain seizures.
Of course, ICE brought this paranoia on themselves, since their scary graphic
doesn't include copies of the warrants, details of which courts issued them,
or information about the procedure they went through to get them.

But the only person they _have_ to notify is the registrant; and the standards
for proof of service (of the warrant) in foreign domains is lower than that
within the US. I'm not sure the owner of torrent-finder.com is necessarily an
honest reporter - the court may not have provided him with any notice, though
I find it hard to believe he's never ever received a complaint or warning of
any kind that might tip him off to such an eventuality.

Incidentally, considering that all his contact details are still available via
goDaddy's whois, it's a bit depressing that none of the media outlets
reporting this so breathlessly have spent the $1 or so it would cost to call
him up for a quote. And we wonder why the investigative reporting business is
in such a poor state.

~~~
pyre
I think that anyone on the mainstream-media that read that post is scratching
their heads wondering what a WHOIS record is.

------
jeromec
I want to play devil's advocate here, and would love input from others as
well, because if I'm right my thinking casts the govt. in a much less harsh
light.

ICANN was created to manage DNS and IP address space on behalf of the govt.
It's a non-profit that operates independently under a board of directors, and
it's mandate comes from a Memorandum of Understanding which set up a
relationship between ICANN and the U.S. govt. However, it still appears that
ICANN is under the authority of the U.S. govt., although it is formally a non-
profit corporation in California. I mean it's under U.S. authority sort of in
the same way that the Bush administration could press telecoms to illegally
wiretap communications at Folsom St. in San Francisco and elsewhere. Now, that
warrant-less wiretapping was blatantly unconstitutional, because legally
protected privacy was breached. However, these domain seizures are different,
because nobody is guaranteed the right to use domain names; it's more of a
privilege like driving. People don't have the "right" to drive cars. That's a
privilege granted by states, and subject to their regulations and laws. If a
person applied for a license and stated they only wanted to drive so they
could rob banks and get away faster, I'm guessing they could be legally denied
the license, no court case needed. Well, this appears to be a similar issue.
It would make these seizures look like less of an overreach by the DHS.

The issues around DCMA are something different to address. I'm strictly
talking about this domain seizure issue, and the claim of unconstitutional
censorship. That may not be an accurate claim at all. It may be that we need
to ensure ICANN is out of the jurisdiction of the U.S. govt.

~~~
Andrew_Quentin
Everyone has the right to drive a car, to eat a cheesburger, to buy a
computer, an ipod, to drive a plane and own one.

We have the right to do anything and everything which is not prohibited by the
law. On the other hand, the government can do only that which is allowed by
the law.

Thus, we do have a right to own a domain, a domain is private property, the
government has no right to cease it unless the legislature has given them the
right and if the legislature has given them the right, then whether this right
applies in an individual case is up to the court to decide who has the job of
interpreting the law and applying it to the facts of individual cases.

~~~
jeromec
_Everyone has the right to drive a car_

Well, let me clarify that. People have a right to drive cars _on their own
property_. Everyone doesn't have the right to drive cars on public roads. If
they did they wouldn't need a license, which can be revoked. At least, I
believe that's how it works. Someone please correct me if that is not
accurate.

I do agree a domain name should be considered private property. So, you're
right that people should have the right to own domains. Apparently, in this
case the domains were legally seized private property. So, it still seems to
me, the only way to be totally free from paranoia about the govt. potentially
seizing your domain is to have ICANN removed from U.S. jurisdiction.

------
tomjen3
Does anybody know why nobody has sued over this yet? it has to be blatantly
unconstitutional.

~~~
elbrodeur
I'm not an expert but it seems to be legal and even constitutional. It's
offensive, but if you mad-libbed the story, I'm betting it would seem less
offensive.

The US Government siezed __number__ of __noun plural__ because of suspected
__illegal verb__.

I was upset when I read the headlines as well. Mostly because of what I
inferred -- not because of what happened.

My only worry is that one sad effect of this precedent might be people having
their domains taken from them because a small number of users use the service
for illegal activity.

EDIT: There's another post on the front page right now which says what I
wanted to say much more eloquently:
<http://news.ycombinator.com/item?id=1946154>

------
cool-RR
Final sentence:

 _We cannot take this sitting down. This must not be allowed to stand._

So... We let it sit down, and we have to stand?

~~~
lukeschlather
We stand up and knock it on its ass. This is a blatant violation of due
process.

------
wyclif
I'd like to see a list of those 70 domains.

~~~
daeken
2009jerseys.com, 51607.com, amoyhy.com, b2corder.com, bishoe.com,
borntrade.com, borntrade.net, boxedtvseries.com, boxset4less.com,
boxsetseries.com, burberryoutletshop.com, cartoon77.com, cheapscarfshop.com,
coachoutletfactory.com, dajaz1.com, discountscarvesonsale.com,
dvdcollectionsale.com, dvdcollects.com, dvdorderonline.com, dvdprostore.com,
dvdscollection.com, dvdsetcollection.com, dvdsetsonline.com, dvdsuperdeal.com,
eluxury-outlet.com, getdvdset.com, gofactoryoutlet.com, golfstaring.com,
golfwholesale18.com, handbag9.com, handbagcom.com, handbagspop.com,
icqshoes.com, ipodnanouk.com, jersey-china.com, jerseyclubhouse.com,
jordansbox.com, lifetimereplicas.com, louis-vuitton-outlet-store.com, lv-
outlets.com, lv-outlets.net, lv-outletstore.com, massnike.com,
merrytimberland.com, mycollects.com, mydreamwatches.com, mygolfwholesale.com,
newstylerolex.com, nfljerseysupply.com, nibdvd.com, odvdo.com, oebags.com,
onsmash.com, overbestmall.com, rapgodfathers.com, realtimberland.com,
rmx4u.com, scarfonlineshop.com, scarfviponsale.com, shawls-store.com,
silkscarf-shop.com, silkscarfonsale.com, skyergolf.com, sohob2b.com,
sohob2c.com, storeofeast.com, stuff-trade.com, sunglasses-mall.com,
sunogolf.com, tbl-sports.com, throwbackguy.com, tiesonsale.com,
timberlandlike.com, topabuy.com, torrent-finder.com, usaburberryscarf.com,
usaoutlets.net

~~~
SkyMarshal
Opportunity for a quick score - reregister as many of those as possible under
unregistered foreign TLDs, then sell for a hefty markup when those companies
come looking for a safer TLD to reregister their domain under.

~~~
AndyKelley
yuck.

------
joelhaus
Did WIPO[1]/UDRP[2] play a role in this?

Assuming not, I'm curious, in your opinion, does the procedure WIPO uses to
confiscate domain names provide sufficient due process?

[1] <http://www.wipo.int/amc/en/domains/search/index.html>

[2] <http://www.icann.org/en/udrp/udrp.htm>

_P.S. It would also be nice if you could cite where you learned about this
story._

[Update]: saw the big section labeled "REFERENCES", forget my P.S.

------
NginUS
Still beats syphilis experiments or sarin/VX testing.

~~~
ericb
But maybe not the evils the government commits tomorrow which we won't hear
about because of censorship.

~~~
J3L2404
The arc of history is long but it bends toward freedom.

~~~
NginUS
I agree completely. What I can't be sure of is whether these actions are
indeed a step in the wrong direction- at least for the time being. Just maybe
it's not what it seems.

When Bernanke starts recklessly printing money the way he did recently- that
seems like a panic-driven survivalist effort to me, and I begin wondering if
this isn't more of the same.

China's got us by the balls alright. I'm sure there's some twisting going on
that only the government higher-ups can see, to warrant these reactions of
late.

~~~
ericb
> China's got us by the balls alright.

Not sure about that. I think debtors have more power than creditors. After you
have a client refuse to pay you, you start to see creditor/debtor power
balance in a different light.

~~~
robryan
In the short term possibly, but in the long term refusing to pay a debt such
as that would make it impossible for America to source credit.

~~~
ericb
Not sure about that either. I am not sure what I need to google to find this,
but I seem to recall reading about countries that devalued their currency, but
still were able to get financing. It doesn't necessarily need to be a refusal
to pay per say. China asserts that it is their right to keep their currency
artificially pegged to the dollar. On the same token, we can devalue our own.

------
bconway
FYI- This is an elaborate hoax.

[http://grandgood.com/2010/11/27/domain-name-seizures-of-
popu...](http://grandgood.com/2010/11/27/domain-name-seizures-of-popular-rap-
file-sharing-sites-potentially-an-elaborate-hoax/)

------
ecuzzillo
I've been here for a while, and I already went through my six-month noob HN-
is-reddit phase. That being said, in what possible way is this within the HN
guidelines?

~~~
jdp23
i asked a similar question on another post and also got voted down. my
conclusion is that these posts clearly fall within the HN guidelines (at a
minimum very relevant to anybody whose current or future web startup relates
to content or online shopping) but there are obviously different opinions. i
don't see why suggestions that we discuss it get routinely downvoted.

~~~
steveklabnik
> i don't see why suggestions that we discuss it get routinely downvoted.

Because this kind of meta-discussion is explicitly off-topic:

> Please don't submit comments complaining that a submission is inappropriate
> for the site. If you think something is spam or offtopic, flag it by going
> to its page and clicking on the "flag" link. (Not all users will see this;
> there is a karma threshold.) If you flag something, please don't also
> comment that you did.

