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Bipartisan Letter Questions Domain Name Seizures

September 4, 2012 ,

On Friday, Representatives Zoe Lofgren, Jason Chaffetz, and Jared Polis sent a letter to the Department of Justice and the Department of Homeland Security, demanding to know more about Operation In Our Sites, the program through which law enforcement authorities have been seizing the domain names of websites accused of hosting infringing content.

The letter, addressed to Attorney General Holder and Secretary of Homeland Security Napolitano, notes that seizing domain names without the proper respect for transparency and due process can suppress free speech and cripple legitimate businesses.

The representatives cite particular examples of due process failures, including the seizure of Dajaz1, a music blog that had been hosting files given to it by artists and record labels. Despite this, after its domain was seized, Dajaz1 spent over a year trying to get it back, while the authorities kept filing secret requests to extend the term of the seizure while Dajaz1 was kept in the dark. The extensions apparently were requested in order to give the RIAA and other rightsholders time to evaluate the validity of their copyright claims—after the domain had been seized.

The letter ends with several questions, asking the agencies how sites are chosen for seizure, how they ensure that affidavits supporting seizures are accurate, whether they account for fair use or DMCA compliance, and how many sites have attempted to retrieve seized domains and how they are being handled.

The letter came just as the Justice Department dropped another prominent seizure case, this one against the Spanish website Rojadirecta, which hosted user-submitted links to streams of sporting events. The site had maintained that it committed no infringement, and had in fact been found non-infringing in Spanish courts.

It’s encouraging that Congress is keeping an eye on the evident flaws in the domain seizure process, since it clearly leaves much to be desired. Seizing domain names with inadequate grounds to bring a case in effect punishes websites before any trial happens, or even is scheduled to occur. A completely opaque process that essentially impounds these sites for an indefinite period of time makes an already bad problem worse.