Federal domain seizure raises new concerns over online censorship

It's been a little more than a year since the US government began seizing domains of music blogs, torrent meta-trackers and sports streaming sites. The copyright infringement investigation, led by US Immigrations and Customs Enforcement (ICE) authorities, quickly raised eyebrows among many free speech and civil rights advocates, fueling a handful of legal challenges. Few are more compelling, or frightening than a case involving Dajaz1.com. As TechDirt reports, the popular hip-hop blog has been at the epicenter of a sinuous and seemingly dystopian dispute with the feds -- one that underscores the heightening controversy surrounding federal web regulation, and blurs the constitutional divide between free speech and intellectual property protection.

Dajaz1 was initially seized under the 2008 Pro IP Act, on the strength of an affidavit that cited several published songs as evidence of copyright infringement. As it turns out, ,any of these songs were actually provided by their copyright holders themselves, but that didn't stop the government from seizing the URL anyway, and plastering a warning all over its homepage. Typically, this kind of action would be the first phase of a two-step process. Once a property is seized, US law dictates that the government has 60 days to notify its owner, who can then choose to file a request for its return. If the suspect chooses to file this request within a 35-day window, the feds must then undertake a so-called forfeiture process within 90 days. Failure to do so would require the government to return the property to its rightful owner. But that's not exactly how things played out in the case of Dajaz1. For more details on the saga, head past the break.

Acting within their rights, Dajaz1's owners filed a request for return, and were reportedly told that the forfeiture process would soon get underway. When the 90-day deadline came and went without any movement, the site's lawyer, Andrew B. Bridges, reached out to the government for explanation. In response, the feds said they had received an extension from the court, but refused to provide evidence of this extension, claiming that the court order and motion papers were filed under seal. The documents, they replied, could not be disclosed, even in redacted form. This came as news to Bridges, who claims to have never been informed of the extension. According to the lawyer, authorities told him he wouldn't be notified of future extensions, either, and wouldn't even have the chance to file counterarguments during an adversarial hearing.

This stalemate dragged on for months, thanks to a series of mysterious extensions. These extensions, moreover, were not even accessible through a Los Angeles court docket. When Bridges asked the US attorney for proof of the extensions, he was told that he'd simply have to "trust" that they were obtained. After letting the last extension expire, the government ultimately informed Bridges that the domain would be returned to its owners. That happened on Thursday.

ICE has yet to offer a thorough explanation for the change of heart, with spokesman Ross Feinstein curtly telling Ars Technica that "the government concluded that the appropriate and just result was to decline to pursue judicial forfeiture." RIAA spokeswoman Cara Duckworth, meanwhile, continues to defend the initial seizure, telling Ars that "Dajaz1 profited from its reputation for providing links to pre-release copies, and during that time nearly 2,300 recordings linked to the site were removed from various file-sharing services."

Looking back on the case, one can't help but wonder whether the rule of law may have been gravely compromised. First, the government hoovered up a buffet of domain names with an urgency that seemed to imply imminent danger. Then, instead of proceeding to the next step, prosecutors simply let the case marinate in an ironclad pot of secrecy, without so much as entertaining a request for adversarial hearings. After apparently realizing it had no evidence to stand upon, ICE finally let it drop -- but not without branding Dajaz1 as a bastion of copyright criminality, and shutting it down for more than a year.

If Bridges' account is indeed accurate, this would effectively amount to what TechDirt describes as "lawless, unconstitutional, cowboy censorship" -- a distinctly Kafkaesque brand of criminal prosecution executed under the guise of jurisprudence. We sincerely hope, of course, that this isn't the end of the story. At a time when concerns over federal censorship is reaching a fever pitch, you'd think the government would take every precaution to reassure consumers of its commitment to due process, and of the prosecutorial restraint that the Constitution mandates. But unless someone steps in to clear away the clouds of suspicion blanketing Dajaz1, it's hard to envision these concerns fading away anytime soon.