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Summary:

Federal law enforcement agents celebrated cyber-Monday in their own peculiar fashion by seizing 150 websites to go along with the 72 they ba…

Federal law enforcement agents celebrated cyber-Monday in their own peculiar fashion by seizing 150 websites to go along with the 72 they bagged last year. And now the agencies are using the captured trophies to blast movie piracy — even though many of the sites had little to do with the film industry and nothing in the law says they can use them this way.

The FBI and Homeland Security announced the latest seizures in exultant press releases lauding the eighth phase of the “Operation In Our Sites” campaign under which the federal government is seizing the names of websites that sell counterfeit merchandise. Today’s haul included discount-louisvuitton-handbag.com and googlenfljerseys.com.

There is another odd phenomenon that is coinciding with these seizures which typically take place near events like cyber-Monday or the Superbowl. Namely, some of the seized websites are no longer just displaying a US law enforcement badge but are instead redirecting users to YouTube (NSDQ: GOOG) to watch a “public service announcement” about the effects of DVD piracy on the film industry.

This is strange for a couple of reasons. First, many of the sites have nothing to do with films but instead have names like massnike.com and mygolfwholesale.com — how exactly did federal agents come to favor the movie industry over the makers of footwear or golf apparel? (The films can be found on those two sites and others seized in last year’s raid; the films start playing after approximately 10 seconds).

Second, and more importantly, it is not clear if the federal government has the authority to use the seized property this way in the first place. To get a sense of what is taking place, it is helpful to know that the feds are relying on the civil forfeiture provisions of the U.S. Code. Those provisions in turn say that the procedure for seizing property are the same as those set out in a 1970 federal drug law. Significantly, the drug law sets out specific measures about what the U.S. government can do with the property it seizes.

Legal eagles can have fun reviewing the following provisions but the long and short of it is that it appears that the feds are supposed to sell or destroy the material they seize:

(h) Disposition of property
Following the seizure of property ordered forfeited under this section, the Attorney General shall direct the disposition of the property by sale or any other commercially feasible means

[...]

(i) Authority of the Attorney General
With respect to property ordered forfeited under this section, the Attorney General is authorized to

(1) grant petitions for mitigation or remission of forfeiture, restore forfeited property to victims of a violation of this subchapter, or take any other action to protect the rights of innocent persons which is in the interest of justice and which is not inconsistent with the provisions of this section;
(2) compromise claims arising under this section;
(3) award compensation to persons providing information resulting in a forfeiture under this section;
(4) direct the disposition by the United States, in accordance with the provisions of section 881 (e) of this title, of all property ordered forfeited under this section by public sale or any other commercially feasible means,

These provisions mean it is hard to figure out the legal basis for what Homeland Security is now doing with the seized websites. The law seems to demand that the federal government sell or dispose of the domain names — not commandeer them for a public relations campaign. What the agency is doing would be akin to the FBI seizing a cocaine baron’s Lamborghini and then keeping it for a drug awareness project.

The website seizures are already receiving scrutiny from groups like the Electronic Frontier Foundation which has raised First Amendment concerns and compared the practice to wiping a place off the map. The public service announcements, which were first noted by Wired TechDirt, seem to raise even more concerns.

The fed’s cyber-Monday campaign also coincides with similar large scale seizures by private actors like Chanel which recently nuked another 200 websites through a civil lawsuit. Venkat Balasubramani, who reported the story on Eric Goldman’s blog, has noted that the legal authority for these seizures is also shaky and that, at this rate, brand owners may not even need controversial SOPA legislation to take down piracy sites.

[UPDATE: Thanks to Mike Masnick of TechDirt for sharing that the Homeland Security video is actually the property of NBC (NSDQ: CMCSA) and was initially made for a New York City anti-piracy campaign. Ironically, the feds may not have paid to license the video. See Mike's excellent reporting here.]

  1. “What the agency is doing would be akin to the FBI seizing a cocaine baron’s Lamborghini and then keeping it for a drug awareness project.”

    I’m pretty sure that does actually happen. We have an officer in town that when he goes to public events to do DARE-style presentations, he shows up in a sporty car with a wrap that says “This car was seized from a drug dealer.” I always thought they were a little weird since it sends the message that drug dealers drive nice cars.

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