[discuss] discuss Digest, Vol 3, Issue 67
Shatan, Gregory S.
GShatan at ReedSmith.com
Fri Feb 21 23:17:54 UTC 2014
I agree with Don -- from a lawyer's point of view, this is about proving jurisdiction in the US, if we are talking about direct action by US law enforcement. In Rojadirecta, US law enforcement bootstrapped the US location of the registry for .com and .net for purposes of jurisdiction in order to get a seizure order from a judge, without showing any other US contacts. But this case is an outlier, and as Don notes, the government lost (and I don’t think they've tried this move again). There were other weaknesses to the case as well.
It should also be pointed out that ICE did not seize the site -- they only seized the domain names, which were registered with a US-based registry. Rojadirecta quickly switched to rojadirecta.me and was back in business (and outside US jurisdiction completely at that point). So no "authoritative text" (?) was replaced -- just a path to that text.
So the direct answer to your question is that a US judge can't order, and therefore no way to perform under US law, the seizure of a site located outside the US.
On your censorship question, in the spirit of full disclosure and open debate, I'll point out that Rojadirecta's lawyers argued that the seizure of the domain names constituted a violation of the first amendment. This would not work where the "speech" being suppressed was not protected speech (e.g., child pornography) -- as noted, there were weaknesses in the government case that made Rojadirecta's first amendment argument plausible (and recall that their "text" was never seized).
If ICE wanted to be part of an operation where foreign-based sites are taken down, they would need to cooperate and coordinate with authorities in the jurisdiction (e.g., EUROPOL or government law enforcement agencies). See, e.g., https://www.europol.europa.eu/content/690-internet-domain-names-seized-because-fraudulent-practices identified earlier here by S Moonesamy.
As far as I can see, there's no plausible scenario where access to the root would need to be part of LE's activities. LE is going after illegal activity -- counterfeiting, identity theft, child pornography, IP theft, etc. They will want to strike directly at the bad actor. The root would not even be of interest.
Finally, the idea that "Judges should know the way the things they judge ... work" is not consistent with reality or even the way litigation works. First off, judges are not "expert panelists"; they have to deal with lots of things that they know little about (the market in grain futures, the similarity between 2 heart valves, how shipping containers are secured to a ship, etc.). It's nice to get a judge with some background and experience to allow him to grasp what you are explaining, but hardly to be expected. Second, the litigants are supposed to "educate" the judge on the facts of their case (as each side sees it) and to provide admissible evidence to show the facts; this is how facts become part of the case that the judge has to deal with. There are significant limitations on "judicial notice" (where judges bring their own experience or research to the case), and if a judge takes too much of that into his own hands you risk a mistrial. While I am no "geek," by comparison with the level of knowledge of things technical that I see in most lawyers (and by extension, judges), I am an ubergeek. Computers are appliances, the internet is a means for getting content, and ICANN is just another five letter word jumble.
From: discuss-bounces at 1net.org [mailto:discuss-bounces at 1net.org] On Behalf Of Don Blumenthal
Sent: Friday, February 21, 2014 5:15 PM
To: Jefsey; Christian de Larrinaga
Cc: discuss at 1net.org
Subject: Re: [discuss] discuss Digest, Vol 3, Issue 67
I worked on an online case for the first time in 1994 (online service, not Internet). A lot more investigators, lawyers, and judges understand system operations than back then, but still not nearly enough. To paraphrase you in a note today to Milton, we have to deal with the reality of what is, not what theoretically should be.
I¹m not sure what technical question will be solved by explaining how ICE could try to take a foreign-based site down. It¹s a matter of how jurisdiction is interpreted. In Rojadirecta, which is the only instance that I can think of concerning a non-US site, ICE argued and a judge agreed that a US-based registrar for the domain was sufficient. That was a very bad case for many reasons in my opinion and what has been lost for the most part is that the government ultimately dropped it.
Censorship is too loaded a term for me to get into. I have no problem with LE actions that remove harmful or illegal content from the Internet. Of course, my definition of those terms might differ from others¹.
FWIW, I am on the ICANN Security and Stability Advisory Committee and was a member of the work party that wrote SAC 056, SSAC Advisory on Impacts of Content Blocking via the Domain Name System, http://www.icann.org/en/groups/ssac/documents/sac-056-en.pdf. Yep, a lawyer and a geek. :)
On 2/21/14, 1:14 PM, "Jefsey" <jefsey at jefsey.com> wrote:
>you said that things did not happen in a certain technical way. You
>will accept that beliefs are not the way computer works, and Judges
>should know the way the things they judge does work. The technical
>question will be entirely solved if you can explain how an US Judge can
>order, and how is performed, the seizure of site hosted outside of the
>If your forte is, as it seems, in the legal field, would you have
>considered (or someone else) how such a seizure (which consists in
>replacing an authoritatively published text) compars with censoring.
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