Previously Chatty Homeland Security Clams Up After Errors In Domain Seizures Pop Up

by Mike Masnick | Techdirt
Jan. 05, 2011

As you're probably aware, we've been covering the many serious legal questions raised by Homeland Security's decision to use its Immigration and Customs Enforcement (ICE) group to seize a bunch of domain names. As we've reported, the basis for the domain name seizures was full of serious technical and legal errors, which called into question the expertise of ICE on this subject. This was made even worse when details revealed that many of the "examples" used to prove infringement were sent by representatives of the copyright holders.

Right after the domain name seizures, we noted that the Assistant Deputy Director for ICE, Erik Barnett, was perfectly happy to go on the record defending the seizures -- brushing off the concerns many people had about the process. He admitted, point blank, that ICE relied heavily on the very biased claims of industry insiders as the basis for what sites to target, and suggested that there were no serious due process problems with taking down entire websites prior to any adversarial trial.

Of course, this was all before the affidavit had been released, and the myriad errors became clear. So I asked Erik if he would respond to a short list of questions concerning the process and the specific errors made, figuring that since he had been so happy to speak out about these domain seizures in the past, he would be able to answer those questions, and perhaps put some of our concerns to rest. While I emailed Erik directly, I instead heard back from Homeland Security's "Office of Public Affairs," which noted that Homeland Security will not comment on "an ongoing investigation before court." Except, that's blatantly false, since Erik was already on the record speaking to other publications.

Either way, I responded and said I understood not being able to comment on ongoing issues (I had asked if the operators of these websites were going to be charged), I would retract the questions having to do with that aspect of the case, but wanted to see if Erik or someone else at Homeland Security might answer my other questions concerning what appeared to be technical and legal errors in the process itself -- such as what efforts did ICE make to ensure that the domain name seizures did not represent prior restraint, as is required in such seizures under the current law, and whether or not this issue was discussed with the magistrate judge who approved the seizure warrant. I also asked whether or not anyone outside of the RIAA/MPAA representatives (and other government employees) were asked to review the evidence prior to the seizures.

Not surprisingly, after asking a second time if Homeland Security could address these questions, I was told "we are not discussing the matter at this time." So, there you go. Homeland Security had no problem playing up these seizures immediately following their seizure, but as more and more evidence comes out concerning mistakes made, the agency clams up. Transparency in government.