John Morton, head of Immigrations and Customs Enforcement (ICE), stated at a press conference late last year, that he wants netheads to know something about his agency: they are "not the police of the Internet"

So when the Department of Justice and Homeland Security’s ICE office proudly announced that they had seized domains related to counterfeit goods and child pornography, they failed to mention that one of the targeted domains belongs to a free DNS provider.

This past weekend, 84,000 websites were wrongfully accused of links to child pornography crimes leaving many website owners scratching their heads (and seething red) that a banner replaced their website domain reading.

“Advertisement, distribution, transportation, receipt, and possession of child pornography constitute federal crimes that carry penalties for first time offenders of up to 30 years in federal prison, a $250,000 fine, forfeiture and restitution,”

As with previous seizures, ICE convinced a District Court judge to sign a seizure warrant, and then contacted the domain registries to point the domains in question to a server that hosts the warning message. However, somewhere in this process a mistake was made and as a result the domain of a large DNS service provider was seized.

John Morton's little speech also included the line “I am here to emphasize that good law enforcement now requires investigation on and through the web. It’s enforcement that protects the internet from crime and exploitation; it’s enforcement that should receive strong public support.

Eighty Four thousand website netheads likely agree that the web needs protection from the meatheads “investigating” at the ICE.

Read the speech (ice.gov)

Other coverage on this story can be found

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Torrent Freak 

ars technica

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Senator: domain name seizures "alarmingly unprecedented"

Sen. Ron Wyden (D-OR) has 10 tough questions for the department of Immigration and Customs Enforcement (ICE), all of which can be more easily summed up in a single, blunter question: what the hell are you guys doing over there?

Wyden's displeasure is over ICE's Operation In Our Sites, the controversial program that began seizing Internet domain names last year, and just grabbed several more sports-related domains recently. The seizures are all signed off on by a federal judge, but the affected parties get no warning and no chance to first challenge the claim that they are running illegal businesses. ICE grabbed the domain Rojadirecta.org, a site that links to live sports on the Web and has twice been declared legal by Spanish courts.

In a letter to ICE director John Morton. Wyden asks whether merely linking to infringing online content is illegal (several of the seized domain names did not host any infringing content themselves). He wants to know why the domain names are being seized, but why there's no attempt to prosecute those behind the sites, if these are really criminals. And he wants ICE to keep (and make public) a list of the companies that have lobbied for any particular site's name to be seized, all to ensure that “Operation In Our Sites is not used to create competitive advantages in the marketplace.”

Wyden also digs into one specific case, last year's seizure of the dajaz1.com domain name. The site, which blogged about music and hosted some downloads, was claimed to infringe on copyrights, but Wyden notes that press reports later showed that many of the songs on the site had been provided to its operator directly by music industry executives. Despite the stories, ICE made no apparent move to look into the case or restore the site's original domain name. Wyden wants "the Administration's justification for continued seizure of this domain name and its rationale for not providing this domain name operator, and others, due process.”

Ten Questions  for John Morton

1. How does ICE and DoJ measure the effectiveness of Operation In our Sites and domain seizures more broadly -- how does the government measure the benefits and costs of seizing domain names?

2. Of the nearly 100 domain names seized by the Obama Administration over the last 9 months, how many prosecutions were initiated, how many indictments obtained, and how were the operators of these domain names provided due process?

3. What is the process for selecting a domain name for seizure and, specifically, what criteria are used?
          1. Does the Administration make any distinction between domain names that are operated overseas and those that are operated in the U.S.?
          2. Does the Administration consider whether a domain name operated overseas is in compliance with the domestic law from which the domain name is operated?
          3. What standard does the Administration use to ensure that domains are not seized that also facilitate legitimate speech?
          4. What standards does ICE use to ensure that it does not seize the domain names of websites the legal status of which could be subject to legitimate debate in a U.S. court of law; how does ICE ensure that seizures target on the true "bad actors?"

4. Does the Administration believe that hyperlinks to domain names that offer downloadable infringing content represent a distribution of infringing content, or do they represent speech?

5. Does the Administration believe that websites that facilitate discussion about where to find infringing content on the Internet represents speech or the distribution of infringed content? What if the discussion on these websites includes hyperlinks to websites that offer downloadable, infringing content?

6. What standard does DoJ expect foreign countries to use when determining whether to seize a domain name controlled in the U.S. for copyright infringement?

7. Did DoJ and ICE take into account the legality of Rojadirecta.org before it seized its domain name? If so, did DoJ and ICE consult with the Department of State or the United States Trade Representative before seizing this site in order to consider how doing so is consistent with U.S. foreign policy and commercial objectives?

8. In an affidavit written by Special Agent Andrew Reynolds, he uses his ability to download four specific songs on the domain name dajaz1.com as justification for seizure of this domain name. According to press accounts, the songs in question were legally provided to the operator of the domain name for the purpose of distribution. Please explain the Administration's justification for continued seizure of this domain name and its rationale for not providing this domain name operator, and others, due process.

9. Can you please provide to me a list of all the domain names seized by the Obama Administration since January of 2009 and provide the basis for their seizure?

10. Do ICE and DoJ keep a record of who meets with federal law enforcement about particular domain names? If not, would you consider keeping such a record and making it publicly available, to ensure transparency in government and that Operation in our Sites is not used to create competitive advantages in the marketplace?

Just in case ICE had any doubts about Wyden's hostility to the entire process, the Senator makes his broader position clear:

"In contrast to ordinary copyright litigation, the domain name seizure process does not appear to give targeted websites an opportunity to defend themselves before sanctions are imposed. As you know, there is an active and contentious legal debate about when a website may be held liable for infringing activities by its users. I worry that domain name seizures could function as a means for end-running the normal legal process in order to target websites that may prevail in full court. The new enforcement approach used by Operation In Our Sites is alarmingly unprecedented in the breadth of its potential reach...

For the Administration's efforts to be seen as legitimate, it should be able to defend its use of the forfeiture laws by prosecuting operators of domain names and provide a means to ensure due process. If the federal government is going to take property and risk stifling speech, it must be able to defend those actions not only behind closed doors but also in a court of law."

Combating Online Infringement and Counterfeits Act