At 9:30pm PST on February 11, US Immigrations and Customs Enforcement (ICE) seized the domain mooo.com. They ordered the domain name's registrar to redirect all traffic headed for mooo.com to a government IP address, one which displayed a single stark warning that the domain name had been seized for involvement with child pornography.
But the mooo.com domain name was shared between 84,000 sites; every one suddenly displayed the child pornography warning. The mistake was soon corrected, but the free domain name provider running mooo.com warned users that removal of the banner from their sites might "take as long as 3 days."
One outraged user took to his blog to tell ICE to "get out of my Internet. You'd get no argument from me that there are truly distasteful and illegal things on the Internet. That's true of any society. But there are also proper ways to deal with these problems. Pulling a total domain, sweeping up innocent people along the way, feeling that you don't have to comply with due process of law and indicating that you don't give a damn is wrong. It's not as wrong as child pornography or counterfeiting, but it's still wrong That's to say nothing of any damage done to my name or reputation."
Mooo.com had been seized as part of ICE's Operation Protect Our Children (the better-known Operation: In Our Sites targets piracy and counterfeiting). To seize the site, an ICE agent had drawn up an affidavit which was signed off on by a federal magistrate judge—but neither the free DNS provider nor the actual site operator were notified in advance or given any chance to defend themselves. (Domain owners can sue the government to recover their sites later, if they wish.)
Rep. Zoe Lofgren (D-CA), who holds a law degree, is furious about the mistake. At a recent Congressional hearing, Lofgren grilled IP Czar Victoria Espinel about the incident and stood up for the 84,000 affected sites. "If I were them, I'd sue the department," she thundered.
Espinel insisted that "due process" was built into ICE's operations, which simply applied seizure law used in narcotics and other cases to Internet domains. Besides, no one whose domain had been seized had sued the government to get it back; the process, she said, was in fact snaring pirates.
Lofgren wasn't appeased. And while she's on the warpath against domain seizures, she also faces the specter of a related Web censorship bill called the Combating Online Infringement and Counterfeits Act (COICA). COICA allows the government to block websites, to prevent advertisers from working with websites, and to keep credit card companies from processing payments to blacklisted sites. It's Operation: In Our Sites on steroids.
Nevertheless, Senator Patrick Leahy (D-VT) has promised that COICA will become law this year.
Ars spoke to Lofgren about her opposition to both approaches, why a domain seizure isn't like a cocaine bust, and whether she can forge an alliance with big-government-fearing conservatives to derail COICA.
"They can seize Yahoo or Google or Facebook"
Ars: Could you articulate for our audience what your basic concerns are with the approach that ICE is taking with these domain names seizures?
Rep. Lofgren: Where do I start? First, I think that they [ICE] don't even have the authority to do what they're doing. Their effort to essentially seize—I think illegally—these domain names lacks due process, in some cases has violated the First Amendment rights of individuals.
I think I mentioned during the hearing the debacle with the mistaken domain name takedowns in the pornography effort where they basically slandered thousands of people by saying that their sites had been taken down as consequences of child pornography. Can you imagine as a small business person what that would do to your business, if you are completely innocent? It's a mess.
Their apparent complete disregard of the Digital Millennium Copyright Act remedies, where Congress laid out a scheme where you get notice and takedown—that's the way you deal with this. They never apparently even inquired about that.
Further, I think it's just stunning to think that they would believe that linking sites—they went after Torrent Finder. It's a search engine! What's that got to do with this? I mean, if they're right that they can simply seize that search engine, they can seize Yahoo or Google or Facebook.
Ars: On the question of linking sites [which host no infringing content], some of the people I talk to in the content industries will say, “Look, those aren't equivalent at all. The sites that were taken down were all about watching illegal TV broadcasts on the Internet, as opposed to Google, which has lots of non-infringing uses.”
Rep. Lofgren: Well, I don't think that's correct. The rule has been that you can't destroy legitimate businesses because you find among the legitimate business activity an infringing use. They've completely violated that. In the case of the domain name takedowns, they didn't even do the most basic inquiry, apparently. If you had Googled it, you would have seen non-infringing uses right away.
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