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Seizing domain names without COICA

November 29, 2010 |  3:00 pm

ICE notice Numerous tech advocacy groups have railed against S 3804, the Combating Online Infringement and Counterfeits Act, for proposing to give the Justice Department the power to seize domain names from sites around the globe that are "dedicated to infringing activities." But the Department of Homeland Security's Immigration and Customs Enforcement division demonstrated over the holiday weekend that the feds already have substantial power to confiscate domains from accused infringers, thanks to a 2008 law sponsored by the senator who authored S 3804, Vermont Democrat (and occasional actor) Patrick Leahy.

ICE seized 82 domain names  over the weekend from .com and .net sites around the world, almost all of which sold bootlegged or bogus items. These included designer goods and sportswear in addition to DVDs and CDs. Also on the list, though, was Torrent-Finder, a search engine for files being shared online via the BitTorrent protocol. (An 83rd domain name seized on Monday -- TVshack.cc -- belonged to a site offering links to free movie and TV shows.)

According to Assistant Deputy Director Erik Barnett, ICE timed the seizures to coincide with Cyber Monday as a way to educate the public about infringement and steer shoppers away from illegitimate outlets. The investigation started ...

... with ICE asking the Motion Picture Assn. of America, the Recording Industry Assn. of America and several other trade groups for a list of sites to investigate, Barnett said. The agency narrowed the list to 82, then proceeded to gather enough evidence to seek a court order seizing their domain names.

(Although current law appears to give the feds wide discretion in choosing targets, Barnett said ICE doesn't have the resources to go after run-of-the-mill infringers. Nor does it pursue every site that copyright and trademark owners suggest; Barnett said those requests are vetted by ICE supervisors and U.S. attorneys, then must pass muster with a federal magistrate.)

Under the 2008 law, the Justice Department can obtain a court order seizing a domain name or any other property used "to commit or facilitate"  copyright or trademark infringement. If a federal prosecutor convinces a federal magistrate that there is probable cause to believe the law has been violated, the judge can order the seizure without giving the site owner advance notice. (The procedures  are similar to those for obtaining a federal search warrant.) The owner can try to reclaim the domain name at an administrative hearing later.

The feds served the court's order not on the sites themselves but on VeriSign, the Virginia-based domain-name registry for all .com and .net domains. (VeriSign also acts as the registry for .cc domains.) That's how ICE was able to enforce a U.S. statute against sites based outside this country.

How effective those actions are, though, is an open question. ICE conducted a less sweeping version of the crackdown in June, seizing the domain names of nine popular sites  that allegedly facilitated movie piracy. Two of the sites resurfaced at like-sounding domains; one example was TVShack.com, which reopened as TVShack.cc, only to be targeted again on Monday. Torrent-Finder has made a similar switch, maintaining its online presence as a .info domain. And even those who've lost their domain names can still operate without them, using their numerical Internet Protocol addresses instead of their usual URLs. They'll just be harder to find.

Still, it's worth noting that Leahy's new bill seems to offer a bit more protection for website operators than the 2008 law provides. The person who registered the site would have to be notified before the court could order even a temporary seizure of the domain name. And the bill's enforcement mechanism would be available only against sites "dedicated to infringing activity," not against those that simply facilitate piracy.

Another key difference is that the Leahy bill would offer a way to crack down on sites whose domain-name registrar and registry are outside the U.S. -- by requiring Internet service providers, advertising networks and payment processors not to route traffic, ads or credit-card payments to those domains. Those provisions, though, don't seem to have drawn as much flak as the bill's domain-name seizure section.

Credit: U.S. Immigration and Customs Enforcement

-- Jon Healey

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