Sunday, November 28, 2010

Abuse Of Power: Feds Seize Websites

I am a long-time critic of the use of government criminal power to do the bidding of private interest groups. This weekend showed again exactly why. The Department of Homeland Security. . . which can’t seem to keep terrorists from boarding airplanes with bombs, can’t secure our ports, can’t secure our borders, and can’t catch or convict a single terrorist except by pure luck. . . spent its weekend doing the bidding of the Recording Industry Artists of America (RIAA) and undermining our judicial system.

I’ve spoken about the RIAA and my disgust for their tactics before. They are an organization that tried to create a monopoly on music, tried to stand in the way of innovation, and when that failed, they lobbied (successfully) to upturn a thousand years of jurisprudence, by eliminating ideas like “innocent until proven guilty” and “the right to face your accuser,” and used the power they obtained to extort money out of average people in the hopes of terrorizing people into stopping file sharing. Their targets have ranged from individual users, to parents, to colleges, to employers, to ISPs. . . guilt or innocent hasn’t mattered to them.

Well, now they’ve got Homeland Security doing their dirty work for them. This weekend, Homeland Security shut down at least 72 websites and seized their domain names because they have been accused of file sharing. There has been no conviction, no hearing, no warning. . . just the accusation.

What’s more, not all of the websites shutdown were even accused of file sharing. One website, Torrentfreak was essentially a search engine. It neither hosted copyright material nor did it directly link to copyrighted material. Instead, it linked to sites that linked to file-sharing material. In other words, this would be like shutting down Google because you can use it to find sites that offer illegal material.

Three things are worrying about this.

First, this is not something Homeland Security should be wasting their time on. Their primary mission is to protect us, i.e. to keep the homeland secure. Working on side issues like this is a distraction from the mission that they are already not doing very well.

Secondly, it troubles me greatly that they have converted what is a private matter between two parties, i.e. copyright infringement, into a criminal offense with the full power of the federal government coming down on the side of the politically connected. There are thousands of claims of infringement of varying degrees and with various levels of merit each year, is Homeland Security to start shutting down tens of thousands of websites each year?

Moreover, what happened to proving guilt? There was no trial in this instance. Even worse, there was no right to face the accuser and no right to appear in court to challenge the ruling or present counter-evidence. This was essentially a raid done on the basis of probably cause. Anyone who knows anything about the criminal justice system knows that “probably cause” is synonymous with “the accuser’s suspicion.” This is the most easily abused legal standard imaginable.

Letting the authorities seize websites and shut them down without a conviction is deeply troubling. Our court system is the only thing protecting us from an overreaching government. And the fundamental cornerstone of our court system is that you have the right to appear and to challenge the evidence against you. The system Homeland Security and RIAA are exploiting, however, is a system based on the principle of “guilty until you can get a trial date to prove yourself innocent.” That’s unAmerican.

Finally, it is very disturbing that all of this is being done to please a highly-connected political lobby. This was not done to protect the public from harm or to maintain law and order. This was done because the RIAA has been unable to stop file sharing by extorting money from the public (a process proven to be much abused by RIAA), so it wanted to step up the firepower. If we allow this, what’s next?

It is the slipperiest of all slopes when we sell the power to have the federal government’s brutal police power at your beck and call, and when all you need to do to get the government hopping is to swear that you have a suspicion of wrongdoing. Should we let Homeland Security shut down your website because a debt collector claims you haven’t paid a bill? Should we let Homeland Security shut down your website because you failed to pay spousal support? What if you’re giving out advice that might be considered criminal? Bomb making? Sure. But what about a website listing speed traps? What about a website listing how to avoid ObamaCare’s requirements? Do we really want the government doing this?

This is very bad for our country.


Joel Farnham said...


This is so far out of Homeland Security's mandate. My suspicion is that if they can do that, they will do it to the rest of the internet. I wouldn't put it past the Obamanites to try to stifle any conservative sites.

AndrewPrice said...

Joel, I see this all as part of a pattern. First, they try to regulate the net through "Net Neutrality" on behalf of contributors like Google. Then they try to hand off domain registration to an unaccountable organization shared with foreign countries, who don't have First Amendment laws. Now they have Homeland Security acting like rent-a-cops for other contributors.

It strikes me that Team Obama is very interested in gaining more and more control over the internet, and I don't doubt for a minute that shutting down conservative thought would be their goal -- just like the way they use the IRS to audit conservative groups, but not identical liberal groups.

This is very disturbing.

AndrewPrice said...

And, p.s., I agree entirely that this is way beyond the mandate of Homeland Security. This is like asking the military to enforce subpoenas in a civil case.

Anonymous said...

Andrew - I do agree with you (really!) but piracy is quite the problem. And as always, it's the little guys that suffer.

I've written about my love of film music. These labels are quite small and barely make a profit. The gentleman who runs Film Score Monthly (which he started as a newsletter in college 20 years ago) went ballistic a month ago when he found out that a boxset he produced ended up on a file-sharing site.

He didn't petition the government or anything but he did go about getting the site shut down, one private entity to another. The forum thread is here.

AndrewPrice said...

Scott, I would say there are four issues here.

First, this is not something Homeland Security should be doing.

Secondly, we are in serious trouble when the government's police powers are for sale.

Third, there is the question of a lack of due process. All of this is happening without an adversarial hearing. Whether you think piracy is a problem or not, that should bother everyone. When you get rid of court process, you let people shut other people down with only hints of suspicion. That's too easily abused to allow in our system.

Fourth is the issue of piracy. I understand that piracy is a problem, but I think the problem is one of the industry's own making. They (film and music) failed to adapt to changes in technology, and it got away from them. At the same time, they tried to maintain a monopoly pricing model (the benefits of which did not flow down to consumers or artists), which technology broke. Now they're in a bind because they've basically allowed a culture of "theft" to develop by trying to maintain that monopoly. And I'm sorry if people are getting hurt, but we should not be changing our legal system and upsetting 1000 years of learned lessons just because these guys have caused their own problems. There better ways to fight piracy that don't destroy our legal rights.

Unknown said...

Andrew: I think I'd be a lot happier if Homeland Insecurity were chasing WikiLeaks, which does pose a national security threat, and a whole lot less time acting as the umpire who has been paid off by one of the sides in a private contractual and/or copyright infringement matter. Aside from interfering with the First, Fifth, Sixth and Fourteenth Amendments, there's not much wrong with Napoleontano's actions.

AndrewPrice said...

Lawhawk, The Wikileaks thing is stunning. While I have enjoyed reading about Gadaffi being very upset at his treatment in NYC, I am appalled that someone would release all of this information, and I'm honestly surprised they couldn't arrest them for possession of classified documents.

I was really amazed to hear them say, "we redact names so this isn't dangerous." But you and I know as attorneys how useful even seemingly insignificant pieces of information can be. Seriously, how many times has one word in a stack of documents suddenly cast light on the whole thing?

If anyone dies as a result of these leaks, they should try everyone involved for murder and conspiracy.

BevfromNYC said...

I have to admit that when I read that they had seized and shut down websites, I immediately tried our site. Phew...I know, I know, but I wouldn't put it passed the Obamatons to try. And the BLE's could have turned us in...I've never quite trusted them, but don't let them know that.

Unknown said...

Andrew: I couldn't agree more. This is very, very dangerous stuff. I would add treason as a charge for any American knowingly involved.

AndrewPrice said...

Lawhawk, I agree. What is treason if not the disclosure of massive amounts of information during a time of war that will undermine our security and get our soldiers, our diplomats, our informants, and our friends killed?

AndrewPrice said...

Bev, It is hard to trust the Elves, but they were in Florida trying to steal a space shuttle or something like that. ;-)

When I first heard about this, I thought it had to be terrorist related. Imagine my surprise when I found out that DHS was shutting down file-sharing sites.

Like you, I don't put it past the Obamacrats at all. They have a long history of abusing the law -- like auditing right wing groups, or getting court orders right before the election to stop television ads in the last election on the claim that they were "false". I don't doubt for a minute that the Democrats would love to control what can be said on the internet.

Ed said...

After a nice Thanksgiving break, this was unpleasant news to meet me. I don't have an opinion about piracy, but I do have an opinion about our government shutting down websites. I would agree with this if they convicted these guys of piracy, but to do this without a conviction is just wrong. I also agree with you that this is not something DHS should be doing.

DUQ said...

I'm with Scott that something needs to be done about pirates, but I don't like this. Homeland Insecurity should be looking for damn terrorists, not video pirates.

AndrewPrice said...

Ed, To me the whole issue abuse of power and the use of government power to do the bidding of private parties. Those are dangerous things for a democracy. It leads to abuses and it discredits the government.

AndrewPrice said...

DUQ, Terrorists are hard to find. ** rolls eyes **

Seriously, I agree, they should be looking for terrorists, not hunting down copyright pirates. It makes you wonder what else they are doing that they shouldn't be, doesn't it?

Tennessee Jed said...

The only time Homeland Security should be involved in the internet is when there is a definite link to a terrorist threat, and this is not that.

I am not a lawyer, but it would seem the proper way is for Scott's aggrieved box set creator to go to a judge and get an injunction to remove his material from their site.

I have a great deal of sympathy for copyright, but hate the big companies for their heavy handed tactics. I have previously documented my hatred of Sony for putting spyware and malware on their music C.D.'s

It is interesting how the Obama administration keeps doing things where you say to yourself, "oh they can't really be doing that, can they?" and then, the next thing you know, we are another step closer to Orwell.

AndrewPrice said...

Jed, Don't get me wrong, I too have a great deal of respect for copyrights. BUT, I see them as a private right, not something that our government should be out there using police powers to enforce.

And you're right about the injunction, that's the step that should have been taken. But that would have required them to bring proof to the judge that their rights were being violated and that they could not be compensated for their loss -- something called "irreparable harm." Moreover, to get anything more than a 10 day temporary restraining order, they would need to serve the defendant and let the defendant argue in opposition to the granting of the injunction. It's a lot easier to call your Congressman and get him to send in the Feds to shut down your opponent, and make them prove their innocence.

On the Sony issue, I load all of my music onto my computer. But I've bought CDs that wouldn't play in my computer because of the screwy copyright protection. So I returned the disc and downloaded the music. They had their chance.

As for Obama, I think it's interesting how many times he does things that the left screamed bloody murder about when Bush did it. In fact, Obama seems to have gone further than Bush ever did in terms of crushing individual rights. Yet, the left is silent. What does that tell us?

Ed said...

What's the difference between a temporary restraining order and an injunction?

Notawonk said...

linking! and thugs will take what we allow. it's the way of the world. always has been, always will be.

StanH said...

Much peace brothers and sisters, Barry loves you most. These steps are required for his Magnificence too keep us safe from ourselves. Much love and respect my brothers, “SOMA anyone?”

Lt. Dan said...

Torrentfreak is actually alive and well, thank the stars. Torrent-Finder was the meta-search site that was taken down.

Good write up.

AndrewPrice said...

Ed, A temporary retraining order (TRO) is something you can often get in an emergency when you can show that you will suffer immediate, irreparable harm, and there isn't time to notify the other party. Those last anywhere from 3-10 days. That's just enough time to serve the other party and hold a hearing to try to convert the TRO into a "permanent injunction," which is what people think of as a classic injunction. In truth, both are very hard to obtain and simple money damages are never considered irreparable. Instead, you are looking at things like the destruction of a house or being evicted or having a child taken out of the country.

AndrewPrice said...

Patti, Isn't that the truth! The power-hungry will always take what we let them take. And what's worse, we often give it to them when they scream "it's for your own protection" or "it's for the children."

Thanks for the link! :-)

AndrewPrice said...

Stan, I see this as a first step. That's how they've always done it.

Day One: "Oh, we need this to stop terrorists."

Day Two: "Oh, we should apply this to stop really bad criminals."

Day Three: "Hey we uses this on criminals already, so let's use it on all criminals."

Day Four: "What you're doing could kind of be considered criminal."

Day Five: "This is a well-established government power and you've angered the government."

AndrewPrice said...

Thanks Lt. Dan, I apologize for the error -- the places where I learned about this both identified Torrentfreak. As I say above, to me, there are many issues here even aside from the issue of piracy.

CrispyRice said...

I was outraged when I heard this, Andrew! I think you summed it up for me right there at the end. What's next? And where does it stop??

Call me "ready to march on DC"!

AndrewPrice said...

Crispy, I think a lot of people were outrages when they heard this. What's even more interesting is the reaction of people like Bev, who trust the government so little that they weren't sure if this was aimed at criminal activity or just people Team Obama doesn't like. It's pretty sad that we've come to that.

Joel Farnham said...


This is slightly O/T, but I think it lends credence to your pattern.

I found Depotism Made Easy at Day By Day. It is in pdf form and can be downloaded. I think it is a very important 14 page document.

AndrewPrice said...

Joel, Interesting document and I think it covers most of the tricks used by totalitarians to get and keep power. It's a twisted world, isn't it?

BoilerRoomElf said...

I'm sure we heard nothing at all, Bev!!

The Elves wouldn't let this site go down. Not without a fight anyway!

Ed said...

Oh, thanks. I've heard both terms, but didn't know the difference.

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