August 31, 2012 | By Trevor Timm
This morning, a bipartisan group of Representatives, led by Rep. Zoe Lofgren (D-Calif.), sent a pointed letter to Attorney General Eric Holder and the Secretary of Homeland Security Janet Napalitano protesting the recent spat of domain name seizures—executed on dubious copyright grounds—that have been censoring websites with no due process.
“Our concern centers on your Department’s methods, and the process given, when seizing the domain names of websites whose actions and content are presumed to be lawful, protected speech,” the letter said, which was also signed by Rep. Jared Polis (D-Colo.) and Rep. Jason Chaffetz (R-Ut.).
The Representatives’ letter focused on the case of former hip hop website Dajaz1. Dajaz1’s domain name had been seized for over a year, despite evidence that the website had lawful material, and that “many of the allegedly infringing links to copyrighted songs, and specifically the links that were the basis of the seizure order, were given to the site’s owner by artists and labels themselves” including Kanye West, Diddy, and a vice president of a major record label.
Adding to the injustice, the government refused to cooperate with Dajaz1’s attorneys for months, and sought numerous extensions of the seizure authority in secret. When the court records were finally released, it showed that the government was waiting on the RIAA to evaluate a “sampling of allegedly infringing content” and respond to other “outstanding questions.” While the RIAA fiddled, Dajaz1 lost the right to speak and the public lost its right to read what was published there.
Finally, after a year, control over dajaz1.com was handed back to the owners with no apology, and no explanation. It is disturbing enough that DHS has been effectively acting as the tax-funded hired gun of the content industry, but, even more horrifying, it censored the wrong targets, for no good reason, for a year.
Dajaz1’s case is far from unique, as we found out earlier this week when a similar situation happened to Rojadirecta.com and Rojadirecta.org, the popular sports streaming sites that were seized—again with no due process—back in February 2011. The sites, which have been in the midst of a court fight to return its domains, had been arguing that linking was not infringing, noting that a Spanish court had already found the sites legal. Yet the government still held onto their domain for 18 months. On Wednesday, they again handed back their domains with no explanation.
As we explained:
Dropping the case was, of course, the right move. The government’s copyright arguments were incredibly weak (it’s pretty well-settled that linking is not infringement). Even more troubling, the seizures also captured plenty of legal and protected speech. Indeed, many (including EFF) have been making these arguments for well over a year. The real question is why it took so long.
We also demanded the government should explain why it reversed its position, and provide a clear policy rationale so websites around the world could assess their risk for unexplained and unjustified seizures.
The Representatives want answers to the same questions. At the end of their letter, they ask seven specific questions about DHS’ policy, their rationale, and what procedures they plan on implementing so websites’ rights aren’t trampled on again. You can read the full letter here.
EFF is encouraged that Congress is taking an increased interest in making sure First Amendment protected speech is not censored on the Internet due to draconian copyright policy, and we look forward to the Justice Deparment and Homeland Security’s official response.