United States House of Representatives Judiciary Committee Members Zoe Lofgren [D, CA-16], Jared Polis [D, CO-2] and Jason Chaffetz [R, UT-3] issued a complaintive request for further details of Operation In Our Sites domain name seizures and attempted forfeitures to U.S. Attorney General Eric Holder and U.S. Secretary of Homeland Security Janet Napolitano. Since 2010, at least 839 websites have been seized and 229 sites have been forfeited by the U.S. government in iterations of Operation In Our Sites.
The request came one day after the U.S. Attorney’s Office of Southern District of New York filed voluntary dismissals for the attempted forfeitures of domain names Rojadirecta.com and Rojadirecta.org and four weeks after U.S. Appellate Judge Richard A. Posner’s opinion in Flava Works, Inc. v. Gunter, No. 11-3190, 2012 WL 3124826 (7th Cir., 2012). Posner’s opinion appears influential in the decision to drop the Rojadirecta forfeiture attempts and may signal new policy. Answers to the bipartisan request could reveal those potential changes.
Representatives Lofgen, Polis, and Chaffetz requested:
- What is the process for determining which sites to target? Who is involved in that process? What specific steps do DOJ and ICE take to ensure that affidavits and other material are thoroughly reviewed for accuracy prior to seizing a domain?
- To what extent are government agents required to evaluate whether the potentially infringing material to which target sites link — or which they host themselves — are non-infringing fair uses, impliedly licensed, and/or de minimis uses?
- Do government agents consider whether a site complies with the DMCA safe harbors? If so, how does this affect the determination to target a site?
- How many sites have attempted to retrieve their domains, via any process, judicial or informal, and what is the status of those cases?
- Have you made any changes to your domain seizure policies or their implementation as a result of the issues arising from the Dajaz1 seizure or any other seizure? If so, what were those changes?
- What specific steps has the DOJ and ICE taken to ensure that domain name seizure cases proceed without unnecessary delays, and that website owners seeking to restore their domain names have swift access to the officials and documents necessary to resolve their cases?
- How many more seizures do you anticipate occurring in the next six months and year?
The request was framed by the DOJ’s earlier attempt to forfeit dajaz1.com.
Other complaints have been raised by websites seized under “In Our Sites” that bear similarities to the Dajaz1 case. These complaints center around unnecessary delays in advancing and resolving cases, difficulty in obtaining documents from the government that are fundamental to the underlying cases (such as affidavits), and difficulty even maintaining contact with the U.S. Attorneys prosecuting the cases. The effect of these problems is to severely limit the ability of website owners to challenge the legality and merits of the domain name seizures. U.S. Representatives Zoe Lofgren, Jared Polis, and Jason Chaffetz. Letter to U.S. Attorney General Eric Holder and U.S. Secretary of Homeland Security Janet Napolitano. 30 August 2012.
In December of 2011, amid congressional oversight hearings over the U.S. Bureau of Alcohol, Tobacco, Firearms and Explosives Operation Fast and Furious gunwalking scandal, Representative Lofgren steered testimony to the dajaz1.com seizure:
“As you know, for over a year, ICE in the Department of Justice have been seizing domain names of hundreds of websites on allegations of criminal copyright and trademark infringement. One particular domain name was seized a year ago, November 2010. It’s the JazzOne.com [sic erat scriptum], a very poular blog that was dedicated to hip-hop music. Just today, the news is that, with the details, that the seizure, which I thought raised troubling questions at the time about the government’s — government’s conduct in the case, and really raises questions about constitutional rights of due process and free speech as they apply to websites. After the government seized the domain name, its owner filed a request for the government to return it to them. And under the law, the government has 90 days to initiate a full forfeiture proceeding against the domain, or else has to return the property. However, in this case the deadline passed with no action, and when the website’s lawyer asked with your department’s lawyers, he was told the government had filed an extension with the court entirely under seal and without notice to him. They had no notice. They had no opportunity to respond. And when the lawyer — of course, this is according to the news reports — asked for any sort of proof that the extension had actually existed, your department’s lawyers reportedly said he would just have to trust them. The government then claimed to have received two additional extensions under the same process, without notice and without a hearing, and they refused to release the court order, according to the press reports. And then as of today, the last extension was filed and the government finally admitted that it did not have probable cause for the forfeiture. And the domain name was returned to the website owners today. In short, a blog site, which is identical in terms of First Amendment protections to a newspaper or a magazine, has the same First Amendment rights, was shut down for an entire year by the government, by our government, with no due process, no contested hearings, no written orders…” U.S. House of Representatives. Judiciary Committee Holds Hearing on Oversight of the Justice Department. 8 December 2011.
U.S. Attorney General Holder replied:
“I’m not familiar with the reason why that domain name was seized or the facts of this case. I will certainly look into that and get back to you with whatever information we can. I mean, you’re right. I mean, what the subject matter is of a particular blog, you know, is obviously entitled to First Amendment protection. There may be other reasons why this was seized. I just don’t know. I can tell you that my daughters are watching this hearing, having heard about this hip-hop issue now. I will hear about this from them at home…” U.S. House of Representatives. Judiciary Committee Holds Hearing on Oversight of the Justice Department. 8 December 2011.
Representative Lofgren revisited the issue with Holder in June of 2012:
When you were last before us in December I asked you about a case involving the seizure of a domain name called the jazzOne.com for alleged copyright infringement. In December you said you were unfamiliar with the case but that you would certainly look into it and get back to me. Since that hearing not only have I not heard from you but new details have surfaced and therefore I’d like to revisit the issue. To refresh everyone’s memory, the JazzOne [sic erat scriptum] is a blog. It — it’s a blog dedicated to discussion of hip-hop music. And in November of 2010 the domain name of the site was seized as part ICE’s Operation in Our Sites and on an application by prosecutors in your department. After the government seized the domain name, the owners filed a request for the government to return it to them. And under the law the government had 90 days to initiate a full forfeiture proceeding against the domain or else return the property. However, in this case that deadline passed with no action. When the website’s lawyer inquired with the department’s lawyers, he was told the government had filed an extension, but under seal. The website was given no notice and they were never given an opportunity to appear in court and– and to respond. And I have talked to the representative of the website and he assures that he’s made diligent efforts to try and actually appear and make his case. The — when he asked for proof that the extension existed, your department’s lawyers basically said they’d have to trust them. Now, this happened two more times. Finally in December of last year, more than a year after the original seizure, the government decided that it didn’t in fact have probable cause to seize — support the seizure and returned the domain. Now, we now have unsealed court records and we know that ICE and your department were actually waiting for the Recording Industry Association of America, which made an initial allegation of the infringement to provide detail, apparently proof. And I’ve reviewed the affidavit, which I’d ask unanimous consent to put into the record, that in September of — of 2011, 10 months after the seizure, the ICE agent was still waiting for information from RIAA to give probable cause.Now, here’s the concern I have. Blogs are entitled to First Amendment protection. And I think it’s the law that you have to have probable cause before you seize things. You can’t seize things, have secret proceedings in the federal court and then a year later come up with probable cause. So here — here’s my question for you. It looks to me — and I’d say another issue as to websites, I mean this isn’t like a car that’s stolen and is gonna disappear or a bag of cocaine, it’s a website so the evidence can be completely preserved even without seizure. So I think the issue of seizure does need to be visited with us. But I want to know what the department’s posture is if an ICE agent is behaving recklessly in an investigation, as it seems to be in this case. U.S. House of Representatives Judiciary Committee Holds Hearing on Oversight of the Justice Department. 7 June 2012.