Dec 11 2011
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Dec 11 2011
Crossposted from The Stars Hollow Gazette
Breaking News: Feds Falsely Censor Popular Blog For Over A Year, Deny All Due Process, Hide All Details…
by Mike Masnick, Tech Dirt
Thu, Dec 8th 2011 8:29am
Imagine if the US government, with no notice or warning, raided a small but popular magazine’s offices over a Thanksgiving weekend, seized the company’s printing presses, and told the world that the magazine was a criminal enterprise with a giant banner on their building. Then imagine that it never arrested anyone, never let a trial happen, and filed everything about the case under seal, not even letting the magazine’s lawyers talk to the judge presiding over the case. And it continued to deny any due process at all for over a year, before finally just handing everything back to the magazine and pretending nothing happened. I expect most people would be outraged. I expect that nearly all of you would say that’s a classic case of prior restraint, a massive First Amendment violation, and exactly the kind of thing that does not, or should not, happen in the United States.
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The Dajaz1 case became particularly interesting to us, after we saw evidence showing that the songs that ICE used in its affidavit as “evidence” of criminal copyright infringement were songs sent by representatives of the copyright holder with the request that the site publicize the works — in one case, even coming from a VP at a major music label. Even worse, about the only evidence that ICE had that these songs were infringing was the word of the “VP of Anti-Piracy Legal Affairs for the RIAA,” Carlos Linares, who was simply not in a position to know if the songs were infringing or authorized. In fact, one of the songs involved an artist not even represented by an RIAA label, and Linares clearly had absolutely no right to speak on behalf of that artist.Despite all of this, the government simply seized the domain, put up a big scary warning graphic on the site, suggesting its operators were criminals, and then refused to comment at all about the case. Defenders of the seizures insisted that this was all perfectly legal and nothing to be worried about. They promised us that the government had every right to do this and plenty of additional evidence to back up its claims. They promised us that the government would allow for plenty of due process within a reasonable amount of time. They also insisted that, after hearing nothing happening in the case for many months, it meant that no attempt to object to the seizure had occurred. Turns out… none of that was true.
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Under the seizure laws, the government has 60 days from seizure to “notify” those whose property it seized (imagine having the government swoop in and take away your property, and not even being told why for two whole months). Once notified, the property owner has 35 days to file a claim to request the return of the property. If that doesn’t happen, the government can effectively just keep the property, so it tends to rely on intimidation and threats towards anyone who indicates plans to ask for their property back (usually in the form of threatening to file charges). However, if such a claim is filed, the government then has 90 days to start the full “forfeiture” process, which would allow the government to keep the seized property and never have to give it back. If the claim to return the property is filed and the government does not file for forfeiture, it is required to return the property. Thus seizures are supposedly used as a temporary part of the investigation, to stop criminal activity or to prevent the destruction of evidence. However, that’s not how things always play out in real life.As we’d heard with a number of domain names that had been seized, the government began stalling like mad when contacted by representatives for domain holders seeking to get their domains back. ICE even flat out lied to the public, stating that no one was challenging the seizures, when it knew full well that some sites were, in fact, challenging. Out of that came the Rojadirecta case, but what of Dajaz1?
After continuing to stall and refusing to respond to Dajaz1’s filing requesting the domain be returned, the government told Dajaz1’s lawyer, Andrew P. Bridges, that it would begin forfeiture procedures (as required by law if it wanted to keep the domain). Bridges made clear that Dajaz1 would challenge the forfeiture procedure and seek to get the domain name back at that time. Then, the deadline for the government to file for forfeiture came and went and nothing apparently happened. Absolutely nothing. Bridges contacted the government to ask what was going on, and was told that the government had received an extension from the court. Bridges, quite reasonably, asked how that was possible without him, as counsel for the site, being informed of it or given a chance to make the case for why such an extension was improper.
He also asked for a copy of the the court’s order allowing the extension. The government told him no and that the extension was filed under seal and could not be released, even in redacted form.
He asked for the motion papers asking for the extension. The government told him no and that the papers were filed under seal and could not be released, even in redacted form.
He again asked whether he would be notified about further filings for extensions. The government told him no.
He then asked the US attorney to inform the court that, if the government made another request for an extension, the domain owner opposed the extension and would like the opportunity to be heard. The government would not agree.
And file further extensions the government did. Repeatedly. Or, at least that’s what Bridges was told. He sent someone to investigate the docket at the court, but the docket itself was secret, meaning there was no record of any of this available.
The government was required to file for forfeiture by May. The initial (supposed) secret extension was until July. Then it got another one that went until September. And then another one until November… or so the government said. When Bridges asked the government for some proof that it had actually obtained the extensions in question, the government attorney told Bridges that he would just have “trust” him.
Finally, the government decided that it would not file a forfeiture complaint — because there was no probable cause — and it let the last (supposed) extension expire. Only after Bridges asked again for the status of the domain did the government indicate that it would return the domain to its owner — something that finally happened today. Dajaz1.com is finally back in the hands of its rightful owner. This is really quite incredible, considering the “rush” with which it seized these domain names, claiming the urgency in stopping a crime in progress. But, of course, after realizing that it had no evidence to suggest a crime was ever in progress – there was absolutely no urgency to correct the error.
The level of secrecy in this case makes it sound like a terrorist investigation, not the censorship of a popular music blog. Normally, when there’s a lawsuit, the docket is available on PACER. Even in cases where things are filed under seal or everything is redacted, there’s at least a placeholder for them in PACER. This case does not exist anywhere that anyone can find. The docket was apparently kept hidden in a judge’s office in Los Angeles the whole time. No one knew this was going on, other than the US Attorney and the representatives of Dajaz1 (who still never saw the docket or the extension orders).
Let’s just take stock here for a second. We have the government clearly censoring free speech in the form of a blog that discussed the music world and was widely recognized for its influence in promoting new acts. The government seized the blog with no adversarial hearing and no initial due process. Then, rather than actually provide some sort of belated due process in the form of an adversarial hearing, it continued to deny any and all due process by secretly (even to Dajaz1’s own lawyer) extending the seizure without any way to challenge those extensions. All in all, the government completely censored a popular web site for over a year, when it had no real evidence for probable cause of infringement, as it had falsely claimed in the original rubber stamped affidavit.
Dec 11 2011
Cross posted from The Stars Hollow Gazette
This is your morning Open Thread. Pour your favorite beverage and review the past and comment on the future.
December 11 is the 345th day of the year (346th in leap years) in the Gregorian calendar. There are 20 days remaining until the end of the year.
On this day in 1946, In the aftermath of World War II, the General Assembly of the United Nations votes to establish the United Nations International Children’s Emergency Fund (UNICEF), an organization to help provide relief and support to children living in countries devastated by the war.
After the food and medical crisis of the late 1940s passed, UNICEF continued its role as a relief organization for the children of troubled nations and during the 1970s grew into a vocal advocate of children’s rights. During the 1980s, UNICEF assisted the U.N. Commission on Human Rights in the drafting of the Convention on the Rights of the Child. After its introduction to the U.N. General Assembly in 1989, the Convention on the Rights of the Child became the most widely ratified human rights treaty in history, and UNICEF played a key role in ensuring its enforcement.
Of the 184 member states of the United Nations, only two countries have failed to ratify the treaty–Somalia and the United States. Somalia does not currently have an internationally recognized government, so ratification is impossible, and the United States, which was one of the original signatories of the convention, has failed to ratify the treaty because of concerns about its potential impact on national sovereignty and the parent-child relationship.
In 1953, UNICEF became a permanent part of the United Nations System and its name was shortened from the original United Nations International Children’s Emergency Fund but it has continued to be known by the popular acronym based on this old name. Headquartered in New York City, UNICEF provides long-term humanitarian and developmental assistance to children and mothers in developing countries.
UNICEF relies on contributions from governments and private donors and UNICEF’s total income for 2006 was $2,781,000,000. Governments contribute two thirds of the organization’s resources; private groups and some 6 million individuals contribute the rest through the National Committees. UNICEF’s programs emphasize developing community-level services to promote the health and well-being of children. UNICEF was awarded the Nobel Peace Prize in 1965 and the Prince of Asturias Award of Concord in 2006.
Most of UNICEF’s work is in the field, with staff in over 190 countries and territories. More than 200 country offices carry out UNICEF’s mission through a program developed with host governments. Seven regional offices provide technical assistance to country offices as needed.
Overall management and administration of the organization takes place at its headquarters in New York. UNICEF’s Supply Division is based in Copenhagen and serves as the primary point of distribution for such essential items as vaccines, antiretroviral medicines for children and mothers with HIV, nutritional supplements, emergency shelters, educational supplies, among others. A 36-member Executive Board establishes policies, approves programs and oversees administrative and financial plans. The Executive Board is made up of government representatives who are elected by the United Nations Economic and Social Council, usually for three-year terms.
Following the reaching of term limits by Executive Director of UNICEF Carol Bellamy, former United States Secretary of Agriculture Ann Veneman became executive director of the organization in May 2005 with an agenda to increase the organization’s focus on the Millennium Development Goals. She was succeeded in May 2010 by Anthony Lake.
UNICEF is an inter-governmental organization and thus is accountable to governments.
Dec 11 2011
UN climate conference approves landmark deal
New accord will put all countries under the same legal requirements to control greenhouse gases by 2020 at the latest.
Last Modified: 11 Dec 2011
The president of a United Nations climate conference in South Africa has announced agreement on a programme mapping out a new course by all nations to fight climate change over the coming decades.
The 194-party conference agreed on Sunday to start negotiations on a new accord that would put all countries under the same legal regime to enforce their commitments to control greenhouse gases. Approved by 2015, it would take effect by 2020 at the latest.
However, key components of the accord remain to be hammered out, and observers say the task will be arduous. Thorny issues include the still-undefined legal status of the accord and apportioning cuts on emissions among rich and poor countries.
