Dec 12, 2011

How can businesses ensure that the government won't mistakenly shut down your website?

The Department of Homeland Security (DHS) went on a major campaign against unauthorized music and sports streaming and the sale of counterfeit goods.  Using Federal forfeiture laws intended to seize property like automobiles and houses purchased with funds acquired through illegal activity such as drug trafficking, they seized over 350 web domains. In this campaign, called Operation in Our Sites (grrrr, please, give me better puns for my tax dollars), they seized dajas1.com, a site that was often used by labels and artists to give fans previews of upcoming music. The DHS through ICE (Immigration and Customs Enforcement) named 4 songs that were on the site, apparently reported to them by the RIAA. Problem was that at least 3 of the 4 songs were provided directly to the site by execs at record companies. dajas1.com was taken down for a year, with all proceedings sealed so the site owner could not see anything beyond the initial complaint by ICE alleging copyright violations for the 4 songs. There was no access to court records beyond the complaint, not by the defendant, not by the defendant's lawyer, no one. How can you defend yourself if you are denied access to your own case? After a year, ICE returned the site, with the bare explanation that the forfeiture was unwarranted. WHAT?!?!

It it could happen to dajas1.com, what is to prevent ICE from mistakenly seizing any other domain name, and putting you out of business online? I use images and music that is in the public domain on my website, and can prove it if I am given the chance. Is there anything companies can do to protect ourselves against this type of action, which would be absolutely devastating to my business?


Welcome to the world where industry can use nearly unrestrained governmental power against individuals and small businesses.  The cynical answer to the question is to take all your profits and use them to hire lobbyists.  If you don't think that works, you haven't been following the SOPA fiasco, which would greatly expand the ease with which sites accused of  copyright infringement can be shut down and removed from search engine results, with little apparent regard for actual guilt.  Guilty until you can figure out a way to prove yourself innocent, as I read SOPA.  The companion legislation in the Senate, the Protect IP Act, essentially gives copyright owners the right to shut down websites that are thought to be engaged in infringement, with no bothersome judicial oversight required.  RIAA is all for it, of course, all but claiming the collapse of civilization if the congress doesn't do its bidding.


Thankfully there is pushback against both enforcement overreach, such as you noted with dajas1.com, and absurdly biased bills like SOPA and the Protect ID Act.  Because of the attention brought by the seizure of dajas1.com, there is at least one Senator, Ron Wyden (D-OR) who has issued a statement that he intends to seek answers from the Dept. of Homeland Security about its domain seizure program, so I guess there is still hope for that a few of our more enlightened elected officials will stand up to enforcement overreach.  As an aside, is if just me, or does the phrase "Homeland Security" sound more like a department from 1950s USSR than 2010s America?  I don't recall ever hearing the United States referred to as The Homeland until 2002, and it still doesn't sit well with me.

Unfortunately, I'm not sure that you can really do anything. The government has a habit of acting in an overbearing and legally questionable way at times, and this sort of thing fits right in with that.

You could take every conceivable step to protect yourself and the government could still do it. That's why it's so dangerous for them to have so much power. Legislation must be passed barring them from acting in this manner.

Individual sites cannot protect themselves from this, but collectively our society can by removing some of the power that DHS has in our country. That's the only way to really stop this sort of thing from happening.
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