My respect for copyright notwithstanding, putting a little power in the wrong hands tends to give rise to mischief.  Assistant Deputy Director of ICE, Erik Barnett, proved this truism in  his announcement that government seizures of websites involved in copyright infringement have been a huge success:

“People told us that we will fail if we seize these domain names, and that we’ll look foolish,” said Erik Barnett, assistant deputy director of the US government’s Immigration and Customs Enforcement (ICE) team, which began conducting Operation In Our Sites last year. “People said [that the infringers] would come back. But the reality is they didn’t – that was surprising.”

Perhaps there’s some other internet, one that is only visible to ICE, where seized URLs aren’t back up and running with days, if not hours, of the seizure? 

Techdirt rips Barnett’s announcement to shreds, both from the technological perspective (they’re digital morons) as well as its glaring rejection of any basic notion of due process.  It seems that ICE has figured out that it’s completely impotent in trying to control the interwebz without cooperation from government’s around the world.  It’s beginning to dawn on American law enforcement that the internet is bigger than it is.

Separately, Barnett spoke to The Bureau of National Affairs (BNA) for an interview about the seizures…He kicks it off by again thanking Congress for passing the ProIP Act, which snuck the seizure bit into law, with most people believing it meant seizing actual tools of infringement, not domain names. From there, he discusses how ICE decides what to seize:

The popularity of the website, because how popular a website is tells us how profitable. We look at a website’s Alexa rankings, because the lower the Alexa ranking–meaning the more traffic a website receives–directly correlates to higher proceeds from sales, or to more revenue from advertisements.

Alexa?!? My goodness. Alexa is perhaps the least accurate website ranking system out there and is considered a total joke.

With millions of websites out there, the government has to use some metric to figure out who is the biggest, baddest actor.  Is using Alexa, it’s joke-like status aside, the worst thing?  It’s a fine metric when used to rank blogs on Avvo, because any joke-like errors are of no consequence. When deciding seizures, if not prosecutions, of domains, however, this is wholly unacceptable.  Yet this is the best the government can do.

Barnett also makes this highly questionable claim:

“The notice says that you can challenge the seizure, but no one has yet,” he added.

Yeah, that’s because the US government has made it incredibly convoluted and difficult to actually challenge the seizure. While Barnett notes that the notice says you can, there is no process, and the Justice Department has done everything it can to avoid letting anyone challenge the seizure.

The process, to the extent on can call it that, involves a seizure order, presented to a Magistrate Judge ex parte, and then . . . nothing.  Silence. 

What was really incredible was how everyone I spoke to involved in these cases (even though not at all connected with one another) had an identical story: they’d all love to take their cases to court, but they’re waiting for the government to actually get in touch with them.

It’s not truly silence, but rather the disconnect between the prompt functioning of government and the reality of time on the internet.  The first a domain owner learns of the seizure is when his website is “disappeared” and the government’s notice shows up in its place.  There will be notice.  There will be a form sent out to the putative owner of the website.  But it won’t happen for months. If there’s an investigation, it may be longer.  This is more than reasonable to ICE, not to mention the Mag who signs the take down order, but it’s another lifetime for the internet.

Of course, the delay is quickly a moot issue, since there are always more domains where that came from.

I can’t tell if Barnett is just totally and completely uninformed here… or lying. As plenty of people have noted, at least on the copyright side, the vast majority of the sites have reappeared, often within hours.

Fluidity is something the internet does well, but the government deals with poorly.  ICE sees a website as a discrete entity; take it down and they have eradicated the evil.  When it pops back up an hour later, it must be some entirely new villain, as it won the battle with the old one.  It had to, since it seized the domain.  After all, domain seizures are the cure.

And it can’t be forgotten that even when the government goes all in, seizing thousands upon thousands of domains in the hope of thwarting evil on the internet, there remains the problem of getting the URLs right, resulting in the inadvertent seizure of 84,000 domains by mistake.  Oops.

The problem isn’t the law.  The problem isn’t that copyright is an archaic concept that neither is, nor should, be worthy of respect and protection.  The problem is that the government can’t deal with technology.

The government has never shown finesse at dealing with technology, and the courts even less so.  The heavy hand of law enforcement, which will attest whenever possible to its omniscience in all things under the sun, could make the effort to use a scalpel rather than a bludgeon.  Yet it fails to do so with remarkable frequency, and rarely shows much concern for its failings or interest in doing it better.  But this isn’t limited to a domain seizure, but all things tech. 

The digital world is upon us, even if law enforcement, the courts, the government, still don’t have any greater grasp of how it works than to send inappropriate images on twitter.  Didn’t President Obama use the internet to his great advantage in fundraising for his campaign?  Don’t legislators have blackberries?  Is there any judge  besides Kozinski who has a website?

One would be hard pressed to find a twelve-year-old on the United States who didn’t know how to upload a video to Youtube, yet our government perpetuates its cluelessness about the functioning of the internet as a justification to engage and expand digital destruction in the name of law enforcement.  No one is any safer because some third-tier bureaucrat named Barnett wants to pretend ICE is wildly successful, but the collateral damage of these misguided efforts may well put a significant damper on future tech. 

At some point, both law enforcement and the courts need to figure out a way to stay abreast of the digital world or they are going to muck things up so badly that our crimes per day quotient will go through the roof.  They will then track each of down in sequence of our Alexa ranking until there is no threat on the internet.  And no internet.  It still won’t stop all the evil, but it will make a lot of law-abiding people who use the internet really miserable.

H/T Radley Balko