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Affidavit Shows Errors in Homeland Security Domain Seizures

J.D. Falk writes to report: TechDirt reviewed the affidavit filed by the United States Department of Homeland Security’s Immigration and Customs Enforcement division when seizing various hip-hop and bittorrent-related domain names recently, and discovered some very deep misunderstandings of how content appears on web sites.

”...because you could do a search that takes you to another site and because the site’s admin linked to some blog posts that discuss—but do not encourage—the state of file sharing, that there is probable cause of criminal behavior and your domain can and should be seized without any adversarial trial.”

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There are certainly issues with the procedure Phillip Hallam-Baker  –  Dec 27, 2010 1:17 PM

There are certainly issues with the procedure used here, but unfortunately the article appears to misrepresent the affidavit.

The information provided at the end appears to be provided for explanatory purposes rather than being evidence of behavior by TorrentFinder.com. It does not appear that the author mistook TorrentFreak for TorrentFinder as claimed in the article. It is also pretty clear that the author understands the difference between a distribution site and a linking site and set out to explain that difference to the judge.

The net has been mainstream since the mid 1990s. Why does everyone have to assume that the only possible reason for disagreement has to be ignorance? Chances are that the lawyer who wrote up the affidavit has been using the Internet since high school.

My problem with the seizure is not the legal theory that linking is contributory infringement or serving the warrant on the registry. I think it is rather obvious that TorrentFinder.com existed for the principle purpose of facilitating copyright infringement and the evidence shows that the organizers were profiting from that activity at the rate of $2,000+ per month.

What I have a much bigger problem with is that the seizure order appears to have been made without any real opportunity to challenge the facts alleged. While it does not look very likely that the defendants would want to do so in this particular case it is not clear that anything much stands in the way of the same mechanism being used to suppress political speech.

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