How Uncle Sam seized BitTorrent domain names

[Guest bigdady]

Back in November, Immigration and Customs Enforcement (ICE) Special Agent Andrew T. Reynolds signed an affidavit asking a judge to put five domain names under the control of the US government. All were accused of contributing to online piracy, and it was essential for the domain names to be seized without a trial and without giving the sites a chance to respond. Why? Such sites are destroying the US economy. Reynolds lays it out for the judge:

"Based on my participation in the investigation, I have learned that there is a 'domino effect' to online piracy… Domestic industries lose approximately $25.6 billion a year in revenue to piracy, the domestic economy loses nearly 375,000 jobs either directly or indirectly related to online piracy, and American workers lose more than $16 billion in annual earnings as result of copyright infringement."

Reynolds didn't "learn" any of this by researching the complex effects of illegal file-sharing on Big Content (bad), concert revenues (good), consumer bank balances (good), superstars (possibly bad), and lesser-known artists (probably good). He learned it from speaking with the movie and music businesses, whose representatives appear to have basically directed this investigation.

In 2009, the songwriters' collection agency SESAC talked about online piracy and Congress' recent allocation of $30 million to help address it. Then-head of the MPAA, Dan Glickman, said that the government had to act "due to the negative domino effect on the industry and its employees. 'Copyright industries in the US lose $25.6 billion a year in revenue to piracy, the U.S. economy loses nearly 375,000 jobs either directly or indirectly related to the copyright industry, and American workers lose more than $16 billion in annual earnings,' he said." Sound familiar?

Reynolds doesn't attempt to hide his obvious reliance on the content industries; his affidavit is littered with comments like, "according to the MPAA…" and "based on my participation in the investigation and my discussion with MPAA representatives…" In the end, ICE got its way; a US Magistrate Judge signed off on the seizure order, and the domain names rapgodfathers.com, torrent-finder.com, rmx4u.com, dajaz1.com, and onsmash.com were seized and redirected to an ICE warning image.

We're in your sites

The domain seizures were only a small part of ICE's Operation: In Our Sites 2.0, which grabbed 82 domain names (see the complete list) in late November, but the rest of the sites were involved with physical, counterfeit goods. Nine other sites were seized back in June.

Rightsholders were deeply involved in these investigations, bringing the names to ICE's attention and helping them prosecute the cases. (This is not specially uncommon by itself; if someone robs your business, the police can work with you and solicit suspects who may later be prosecuted at state expense.) And they were grateful for the results.

Days after Thanksgiving, RIAA CEO Mitch Bainwol gave thanks for federally funded prosecutors who had shut down "some of the most notorious music websites that were havens for copyright theft." He also took preemptive aim at those who would criticize the way ICE seized the domains.

"This initiative demonstrates that federal prosecutors can deploy the government’s legal tools with careful and calibrated discretion," he said. "Just as in the physical world, prosecutors and courts know how to assess evidence and distinguish between legitimate businesses and those that flout the law. To those who may question this initiative—who seemingly prefer chaos on the Internet to the rule of law—I urge you to come forward with viable and effective mechanisms to contain the theft that is not only wrong, but devastating to America's artists and creative industries. The answer simply can’t be ‘do nothing.’”

Luxury good maker Louis Vuitton went a step further, actually presenting awards to the ICE agents who assisted with the case.

But the rhetoric here doesn't match the reality. Were these sites the worst of the worst? Did the judges and investigators really "distinguish between legitimate businesses and those that flout the law"? Did ICE actually understand what it was busting?

"A Bit torrent"

ICE agent Andrew Reynolds is hardly a veteran of these sorts of investigations. His affidavit, which was unsealed on Friday, makes clear that he has been investigating IP crimes since mid-2009. Before that, he was a "student trainee" with ICE, doing narcotics and smuggling investigation. That is the extent of his listed experience—and it shows in the affidavit.

Consider, for instance, this excruciating description of BitTorrent: "A Bit torrent (referred to in short as 'torrent' or 'torrent file') is a files distribution system used for transferring files across a network of people." Yikes. Would you put this man in charge of your computer crime investigations?

When Reynolds goes digging into sites like torrent-finder.com, he comes back with an odd haul of data. He cites several forum posts on the site made by the administrator; these are reposts of other articles, including some from the blog TorrentFreak. (Reynolds even helpfully appends one of these as "evidence" at the end of his complaint.) The articles are about how movies have been leaked to BitTorrent or how a censorship bill has gathered support in Congress.

Evidence, but of what?

Torrent-finder.com is a meta-search engine; it searches other BitTorrent search engines and runs no tracker of its own. Reynolds doesn't seem particularly clear on this, however. When he searches for a film and is taken to another site called Kick Ass Torrents, he spends several pages of the affidavit describing Kick Ass Torrents, how it works, and how he eventually started a BitTorrent downloaded using its tracker. What this possibly has to do with torrent-finder.com is never made clear.

Torrent-finder has hired a lawyer to defend itself, and it's not the only one surprised by the case.

The New York Times caught up this weekend with the Queens resident who ran dajaz1.com, who noted his own puzzlement at having his domain seized without warning:

After being shown the affidavit, the operator of dajaz1.com — a widely read hip-hop blog that posts new songs and videos — disputed many of the warrant’s examples of what it called copyright infringement. He said that, like much of the material on his site, the songs had been sent to him for promotional purposes by record labels and the artists.

As proof, the operator, a Queens man who declined to give his real name but is known online as Splash, showed The New York Times several e-mails from record label employees and third-party marketers offering songs mentioned in the affidavit.

“It’s not my fault if someone at a record label is sending me the song,” Splash said.

Draconian methods for a slap on the wrist

If these sites were really some of "the most notorious" on the planet, little has actually been done to stop them. Only .com domains, which are controlled by US registrar Verisign, were seized. Servers and sites weren't touched (some were offshore), so the sites have simply shifted domain names and are back online. With .com now a precarious place to be, dajaz1 has moved to .org while torrent-finder and rapgodfathers have chosen .info domains.

The seizure order was brought in the Central District of California, but the case was closed after the order was executed. In searching the federal courts, we can find no evidence that these five sites are actually being prosecuted. The domains were simply seized, and while it did happen with a court order, the sites were not given any chance to respond and none appears to be forthcoming.

It's not as though every site here is some kind of white knight. Agent Reynolds noted, for instance, that torrent-finder.com's homepage used to say, "Protect yourself from your ISP. Hide your personal activity while downloading torrents." Acting like the site wasn't about finding illegal content is disingenous; as the site's own set of popular tags makes clear, that content is very much at the heart of what people want from the site.

Torrent-finder's most popular tags

But reading through the affidavit, we were most struck by just how thin it was. Reynolds was able to find some movies through the torrent-finder site, for instance, whose .torrent files were hosted elsewhere. He established that the site made money from advertising. And he found the admin reposting news stories about BitTorrent. Replace "torrent-finder" with "google" or "youtube" in the affidavit, and you can see why the whole approach is problematic.

Given torrent-finder's focus on torrents and its previous endorsement of hiding your activity from ISPs, there's a case to made that it is encouraging and contributing to copyright infringement. But a similar case was brought against YouTube making almost the same allegations (Viacom's $1 billion lawsuit), and a federal judge recently chucked the whole thing out of court. While torrent-finder might be liable here, it seems at the most liable in a non-obvious way, the kind that deserves a trial and a right of response. As for the claims of sites like dajaz1, they are even more troubling.

So what we had here was indeed "process." Was it "due process"? And even if it was, did it accomplish anything?

One result may be a shift away from .com domain, which are now perceived as being too much under the control of US law enforcement. As TorrentFreak notes, several BitTorrent search engines have already migrated to other domain names.