Another day and even more evidence that Homeland Security's decision to have its Immigration & Customs Enforcement (ICE) group seize a bunch of domain names without any warning or adversarial hearing was a colossal screw up. We haven't heard too much about the sites seized concerning trademark infringement, but there were five that were the focus of copyright infringement - including a bunch of hiphop blogs (which were regularly used by artists and record labels alike to promote their songs) and a search engine. Last week, we went through a partial affidavit from a newly minted ICE agent named Andrew Reynolds, which showed numerous technological and legal errors in explaining why the domain of the search engine, Torrent Finder, was seized. Yesterday, we wrote about how some of the "evidence" used against the blogs included songs sent by the labels for promotional purposes.

A few different folks have since sent over the full affidavit. So now we can see the "details" of the evidence put together by Agent Reynolds that was (literally) rubber stamped by magistrate judge Margaret Nagle, and it's looking worse and worse for Homeland Security. Basically, all of the sites in question had some forums and in some of those forums, some users posted links to other sites, which hosted some content. In other words, under these conditions, an awful lot of domain names on the internet can be seized by ICE.

Just for fun, I went through most of the files found in the document and searched for them all in Google. In every case, Google popped up plenty of links to sites hosting that content. Now, it's entirely possible that a copyright holder could make the argument that some of these sites reached the level of "inducing" copyright infringement, but, as both Agent Reynolds and Judge Nagle should know, inducement of copyright infringement is a very dynamic area of law, which has multiple factors needed to establish whether or not inducement occurs - most of which Agent Reynolds did not bother to present. Furthermore, inducement is supposed to be determined in a court of law following an adversarial trial - not because some recent college grad ICE agent asked a movie or recording industry exec their opinion on the matter.

At no point, does it appear that any effort was made to establish that seizing an entire domain based on a small fraction of what occurred on the site does not violate the First Amendment. This is going to present a pretty serious problem for Homeland Security, because there's a fair amount of legal precedence saying that you need to take into account the First Amendment implications before seizing forms of expression.

Of course, one response to this was a claim that since ICE only seized the "domain name," speech wasn't prevented, since the speech could still live on on the server itself. This explanation fails for two reasons. First, domain names themselves can be considered speech as has been highlighted in a few different cases. Second, and more importantly, Agent Reynolds' own affidavit makes it clear that the seizures of domain names was because of the content found on those domains (though, he repeatedly, mistakenly seems to think that content on other servers is the responsibility of those domains). If Reynolds was only seizing the domain names to avoid stifling speech of the content on the rest of the servers, his entire argument fails. In his affidavit, he clearly states that he wants to seize the domain names because the domain names are "property used, or intended to be used to commit or facilitate criminal copyright infringement." But, if we're really going to argue that the domain names and the content on the servers are separate, then this argument makes no sense. The domain names themselves are not being used to commit or to facilitate criminal copyright infringement. Only some of the content on the servers.