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Due Process Denied: DHS's Domain Seizure Ends In Failure

Posted by: , 18:20 AEDT, Sat December 10, 2011

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Seized domain name returned to rightful owners by the Department of Homeland Securities a full year after it was wrongfully seized

In a sign of things to come if the controversial SOPA bill is passed, it has now been revealed that some of the domain seizures conducted by the Department of Homeland Security (DHS), along with the Immigration and Customs Enforcement Agency (ICE), were invalid, with the website owners denied due process.

After months and months of delays, clearly lack of transparency, top-secret filings, the DHS has finally released the DaJaz1.com domain name, perhaps proving that the original seizure conducted more than a year ago was an incorrect decision.

The domain seizures by DHS and ICE conducted late last years was seen as a trial of what the government could be doing full time once the controversial SOPA or PIPA bills pass through the house and senate respectively.

And at first glance, DaJaz1.com seemed like the perfect poster-child for domain seizures, as the blog provided links to leaked hip-hop tracks and one of the many sites specifically targeted by the RIAA.

Unfortunately, for all the parties involved, the seizure may have had no standing at all, and as due process was denied to the website's owner, and the seizure came before any trial even took place, DaJaz1.com may just become the poster-child for the anti-SOPA movement.

The problem, for the DHS/ICE, was that DaJaz1's editor, known online as Splash, had written evidence that the tracks provided to him were by record company employees, and often specifically done so for promotional purposes. And the actual domain did not even host the songs in question, as it merely linked to uploads done on file hosting websites such as ZShare. So far from engaging in "unauthorized distribution", DaJaz1.com was actually enganged in "authorized linking".

And worst than the, now erroneous seizure, was the lack of due process afforded to the website's operators. Instead of having a full trial, and then deciding on the fate of the domain name, as has been the standard operating procedure for copyright cases in the past, the domain name seizure came without notice, and even the relevant paperwork involved in the seizure was not made readily available to the "defendant". Even in the case of leaked top-secret documents, "prior restraint" rulings by the highest court in the country, during in the Pentagon Papers scandal, says that seizures and censorship should not begin before a full trial has been conducted.

Even when lawyers became involved, the DHS/ICE dragged their feet in providing any information regarding the seizure. "They kept getting extension after extension from the court under seal without showing me any papers whatsoever," said Andrew Bridges, one of the lawyers from the Fenwick and West firm, representing Dajaz1 on a pro bono basis, before asking the question "Why did the government feel the need to keep secret the fact of its repeated extensions of time to file the forfeiture proceeding?"

And DaJaz1.com was not the only website of its nature to be blocked by DHS, with the similar OnSmash.com also shuttered during the infamous "Cyber Monday" seizures of 2010, and that website's admins also claiming that studios, and even artists themselves, were the source of leaked songs. Critics have long theorized that the RIAA, who provided these websites up to DHS for possible seizure, had ulterior motives to stop sites that were providing promotion to studio represented artists, without going through the studio system - a serious threat to the usefulness of record labels in the age of the Internet.

So finally, after more than a year, DaJaz1.com has been returned to its rightful owners, but the damage has already been done. The home page of DaJaz1.com now show an anti-censorship, anti-SOPA protest information, in the hope to warn others about the dangers of SOPA, and about what could happen to other websites, if rights holders are given carte blanche to take down websites, without due process.


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