After Illegally Censoring Websites For Five Years On Bogus Copyright Charges, US Gov't Quietly 'Returns' Two Domains

Mike Masnick
Techdirt
Dec. 04, 2015

One of the craziest stories of outright censorship by the US government isn't getting any attention at all. Five years ago, ICE -- Immigrations and Customs Enforcement -- a part of the Department of Homeland Security, illegally seized a group of domain names, claiming that they were violating copyright law. As we noted soon after this, the affidavit that ICE used to get a court to sign off on the seizures was particularly ridiculous, showing a near total lack of understanding of both the law and how the internet worked.

The owner of one of the domains, Waleed Gad El Kareem, announced quickly that he was going to fight the seizure -- and he did. Of course, you might not have heard much about it because Homeland Security and ICE basically ignored his legal effort to contest the seizure... until just a few days ago when the domain was "returned" (more on that in a bit). You may also recall that ICE defended these seizures by stating that "no one" had challenged any of the seizures. We called bullshit on this, noting that the owners of five of the seized domains had, in fact, challenged the seizures. Four years ago, we wrote about how the government sheepishly returned Dajaz1, a hip hop music blog, that it had seized and censored for over a year. That story was fairly crazy, as it only did so after Dajaz1 filed a claim demanding the return of the site. The Justice Department secretly (without even telling Dajaz1's lawyer) kept delaying the required response to such a demand, until finally giving up and giving back the domain. It was later revealed that the "reason" ICE secretly delayed returning the domain was that it kept asking the RIAA for the evidence that Dajaz1 had violated the law (as an RIAA rep had initially sworn to an ICE agent), but the RIAA never provided anything.

The following summer, the government returned two more domains. In that case, the company that owned the domains rojadirecta.org and rojadirecta.com, Puerto 80, had actually taken a different path than the others. It flat out sued the government. The government then turned around and initiated a separate legal process to permanently "forfeit" the domains, leading to a bizarre series of filings -- and then, magically, the government just gave up and handed the domains back.

As we noted at the time, that still left a couple of other domains, including torrent-finder.com and onsmash.com. This was all the way back in Decmeber of 2011 -- four years ago -- when we noted both were unaccounted for. Over those four years, I've periodically checked in with the lawyers for both sites, and basically kept getting told there was no update at all, and that they had tried to talk ICE into returning the domains, but ICE basically stopped returning their calls. From what I can gather, neither of the operators of those sites wanted to take the route of Dajaz1 or Rojadirecta, which involved actually going to court, as that's an expensive proposition.

But, it appears that last week, five years after the government just seized those domains, they were supposedly turned back over to the owners.

Well, sort of. Having spoken to Waleed about torrent-finder.com, he told me that ICE had promised to renew the domains when payment ran out -- but it did not do so. Waleed actually feared that might be an issue, and had to re-grab the "expired" domain out of exemption, after ICE released its hold on it. I have not yet been able to confirm what happened with OnSmash.com, but we've been told that ICE similarly released its hold on that domain the same day as it released Torrent-finder.

Still, think about this for a second: The US government illegally seized and censored, on no legal basis a series of websites for five whole years. Dajaz1 and OnSmash were blogs -- so it was akin to seizing the printing presses of magazines (clear prior restraint that is unconstitutional). Torrent-finder is a search engine, like Google or Bing, but specialized in torrent files. Yes, many torrent files may link to infringing content, but many do not, and a search engine should never be completely seized, without any real due process, just because it finds content that may break the law.

This is a complete travesty, and the US government completely got away with it too, because the websites it seized were generally held by individuals without much money, or not even in the US (as is the case with Waleed). I've filed a FOIA request with ICE to try to find out more information on this, but considering all of the grandstanding ICE did when it seized these websites, the fact that it's now basically returned every one of the domains who challenged the seizure really says something -- and it's not good for ICE. Hell, check out this ridiculous MSNBC "investigation" that quotes the ICE guy in charge of these efforts, William Ross, saying completely nonsensical things, like: "We're protecting them from other people taking their ideas and selling them." How do you sell someone else's ideas? Also, none of these sites involved selling anything.

Ross is also quoted in the piece saying: "We keep going after them, no matter how many times they come back up." And yet now ICE has admitted that Ross not only totally fucked up in stealing these domains from their legitimate owners, it then illegally held them for five years. You'd think that, at the very least, Ross and the US government owe Waleed and the others an apology. But I wouldn't expect that any time soon.