Who Needs SOPA When Courts Will Pretend SOPA Already Exists?

by Mike Masnick

[SOURCE]

Back in November, we wrote about one of a series of cases we had seen where trademark holders were going to court with a list of domain names that they insisted were selling counterfeit goods and getting the courts to issue injunctions that appeared to be quite similar to what SOPA would have allowed had it passed. That is, basically upon request, a trademark holder was able to get domain registrars to kill domain names, while forcing search engines and social networks to put in place blockades barring such sites from being listed. It appears that more trademark holders are taking notice. Jeff Roberts has the story of (regular IP extremist) Louis Vuitton trying the same thing.

Basically, it lists out a bunch of websites that may or may not be involved in the sale of infringing works. Most, if not all of them, are foreign run. However, it is seeking a full injunction against those sites, not just to get them to stop selling any counterfeit goods, but to get the domains themselves turned off, and to block search engines from being able to find them:

Entry of an order requiring the Subject Domain Names, and any other domain names being used by Defendants to engage in the business of marketing, offering to sell and/or selling goods bearing counterfeits and infringements of the Louis Vuitton Marks to be disabled and/or immediately transferred by Defendants, their Registrars and/or the Registries to Louis Vuitton’s control so they may no longer be used for illegal purposes.

Entry of an Order that, upon Louis Vuitton’s request, the top level domain (TLD) Registries for the Subject Domain Names and their administrators place the Subject Domain Names on Registry Hold status, thus removing them from the TLD zone files maintained by the Registries which link the Subject Domain Names to the IP addresses where the associated websites are hosted.

Entry of an Order that, upon Louis Vuitton’s request, those in privity with Defendants and those with notice of the injunction, including any Internet search engines, Web hosts, domain-name registrars and domain-name registries or their administrators that are provided with notice of the injunction, cease facilitating access to any or all domain names and websites through which Defendants engage in the sale of counterfeit and infringing goods using the Louis Vuitton Marks.

Entry of an order that, upon Louis Vuitton’s request, the Internet Corporation for Assigned Names and Numbers (“ICANN”) shall take all actions necessary to ensure that the Registrars and the top level domain Registries or their administrators responsible for the Subject Domain Names transfer, change the Registrar of Record, and/or disable the Subject Domain Names as directed by the Court.

As we noted back in the fall, there are all sorts of problems with these kinds of rulings (assuming that the South Florida court in this case follows the lead of previous courts). First of all, it's not clear under what authority the courts can issue such broad injunctions. Second, there are serious jurisdictional questions. But the biggest issue of all is that the court seems to be requiring non-parties to the litigation to take pretty drastic action: requiring search engines and domain registrars to effectively kill sites with little in the way of review or recourse. Now, it's likely that most -- or perhaps all -- of the sites in question are selling counterfeit goods. But how long do you think it will be until others use these cases as precedent for taking down all sorts of sites -- even those that are perfectly legitimate?

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• SOPA Supporters Urge White House To Use Secretive TPP Process To Insert Draconian New IP Laws

The Difficulty In Holding The Gov't Accountable When It Breaks The Law | Techdirt

The Difficulty In Holding The Gov't Accountable When It Breaks The Law | Techdirt

by Mike Masnick

Thu, Oct 20th 2011 2:03am

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We've discussed in the past how the US government likes to use claims of sovereign immunity or national security to avoid being held accountable (and/or to hide the details). This opens the system up to widespread abuse, and it's hard not to imagine that's happening. Even if the vast majority of government workers are good and honest people, the system is structured with so little recourse, that it's impossible not to expect massive abuses of power.


In one recent case, we wrote about an EPA agent who pretty much made up an entire case against a guy, Hubert Vidrine, mostly because it allowed the EPA agent to spend more time with his mistress, with whom he was working on the case. While that's one rare example of the government being held accountable (it had to pay the guy), Vidrine's lawyer wants the world to know that the legal system is basically set up to stymie every effort by folks like Vidrine to respond to bogus criminal charges by the government. The lawyer, Gary Cornwell, was kind enough to pass along a letter he recently sent to Senator Rand Paul, following the Vidrine verdict. That letter is embedded below, but there are a few highlights.


First, he points out that while the facts of the case are certainly unusual, it's unfair to say that such abuses aren't common. The fact is, we just don't know, and the system makes it extremely difficult for anyone like Vidrine to fight back, even when there has clearly been a completely arbitrary and malicious prosecution:

I write principally to convey to you my disagreement with the suggestion of David Uhlmann, former chief of the environmental crimes section at the Justice Department, as reported in the New York Times on October 4, 2011, that "fortunately, this is an isolated situation." This probably is an unusual case; but not because it reflects an isolated problem. More probably, it is an unusual case because the Federal Tort Claims Act discourages lawyers from filing malicious prosecution cases.

When Mr. Vidrine came to me in September, 2005, I filed an administrative claim with the Department of Justice, as required by the Federal Tort Claim Act. By July, 2007, DOJ had failed (for nearly two years) to take any action on the claim, so I filed the civil suit in federal court in Lafayette, LA. I then fought with the government for over 3 ½ more years to get access to the EPA/FBI files documenting the perjury and other acts used by government agents to secure an indictment in December, 1999, and to get truthful deposition testimony uncovering how and why they had kept the prosecution going for nearly four more years (until September, 2003), when all charges were finally dismissed because there had never been a shred of evidence that any crime had been committed. I then tried the case in June, 2011.

Cornwell is hoping that Senator Paul will consider changing the law to make it easier for people to take the government to court if they're similarly wronged:

Plainly, what happened in this case just should not happen in our country, and to minimize the number of times it happens again the FTCA should be strengthened to make it a more effective form of relief for those injured by government misconduct. Most victims of governmental abuse of power simply cannot afford to pay a lawyer to pursue malicious prosecution cases, because the standard of liability (which requires proof of the lack of “probable cause”) is high, and because malicious prosecution cases (like this one) are often complex and involve many witnesses and thousands of documents. (The government produced over 15,000 documents in this case and then argued that their extensive investigation proved that they did have probable cause and were not acting maliciously.)


Given those realities, the Federal Tort Claim Act would better serve our country’s historical interests in preserving our freedom by preventing abuses of power (1) if it allowed the Court to award punitive damages (as the Federal Court noted in its opinion in this case, stating on page 142 that “. . . given the egregious conduct displayed by an agent of the government and the devastation wrought on otherwise law-abiding citizens, had punitive damages been allowable, this Court would have awarded punitive damages in the hope of deterring such reckless and damaging conduct and abuse of power in the future;” (2) if it allowed the Court to compensate Plaintiffs for the attorneys fees they incur in prosecuting the action, (3) if it did not cap attorney fees at 25% of the Plaintiff’s recovery, and (4) if – at least in those cases which are brought solely against the United States (and not against any prosecutor personally) – it expressly allowed “malicious prosecution” claims to be based on the acts of “prosecutors.”

Of course, for the most part, it appears that the government has been trying to move in the other direction, to shield itself from the very laws it passes and requires others to follow.

US Government Refuses To Say Who's On The Intelligence Oversight Board | Techdirt

by Mike Masnick - [REPRINT]

Remember when President Obama took office and one of his first moves, on his very first day in office was to put out a memo telling the federal government to be more open and transparent in response to FOIA requests? A few quotes from that memo:

A democracy requires accountability, and accountability requires transparency. As Justice Louis Brandeis wrote, "sunlight is said to be the best of disinfectants." In our democracy, the Freedom of Information Act (FOIA), which encourages accountability through transparency, is the most prominent expression of a profound national commitment to ensuring an open Government. At the heart of that commitment is the idea that accountability is in the interest of the Government and the citizenry alike.


The Freedom of Information Act should be administered with a clear presumption: In the face of doubt, openness prevails. The Government should not keep information confidential merely because public officials might be embarrassed by disclosure, because errors and failures might be revealed, or because of speculative or abstract fears. Nondisclosure should never be based on an effort to protect the personal interests of Government officials at the expense of those they are supposed to serve. In responding to requests under the FOIA, executive branch agencies (agencies) should act promptly and in a spirit of cooperation, recognizing that such agencies are servants of the public.

Seems pretty straightforward and certainly sounded like a refreshing change from the ridiculously secret previous administration who hated to share anything if it could avoid it. Unfortunately, it appears that this Day One move was nothing but smoke and mirrors. The current administration has been dreadful about responding to FOIA requests.

A new lawsuit highlights just how ridiculous things have become. The EFF has sued the government after the administration refused a FOIA request to reveal who is on the Intelligence Oversight Board, which is a "presidentially appointed, civilian panel in charge of reviewing all misconduct reports for American intelligence agencies." Only problem? In three years in office President Obama has not named a single appointment to the Board. The EFF wanted to find out who's actually handling the duties of the IOB... and the Office of the Director of National Intelligence (ODNI) simply failed to turn over the info.

The EFF had filed a request to expedite the FOIA request with the original request on February 15th, which was denied on February 17th. They then appealed the denial on February 28th... and have heard nothing since then concerning either the appeal or the content requested about the IOB. Remember, the standard response time for a FOIA request is 20 days, and we're talking months of nothing.

What happened to "A democracy requires accountability, and accountability requires transparency"?

Is The FBI Lying To Congress About Its Abuses Of The Patriot Act?

Techdirt
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by Mike Masnick


As we go through this brief extension in three of the more controversial provisions of the Patriot Act, which give law enforcement tremendous leeway in spying on people with very little oversight, there have been some hearings about those provisions. At a recent Senate Judiciary Hearing about this, FBI director Robert Mueller was asked if any of the three provisions had been found to be abused. Mueller responded, "I'm not aware of any." However, as the EFF notes, it has clear evidence of the roving wiretap being abused, which it found via some FOIA documents. Tellingly, when it requested info about Patriot Act violations, it received heavily redacted info. However, via a different FOIA request, it received other information that, when combined with the first FOIA request, reveals a clear abuse by the FBI. Separately, the EFF points out that (former) Senator Russ Feingold indicated at a hearing in 2009 that he had seen confidential evidence of abuse:

"I recall during the debate in 2005 that proponents of Section 215 argued that these authorities had never been misused. They cannot make that statement now. They have been misused. I cannot elaborate here. But I recommend that my colleagues seek more information in a classified setting."

On top of that, they point to a 2007 report (pdf) from the Office of the Inspector General at the Justice Dept, which notes two cases of the FBI abusing those 215 orders.

This raises some pretty serious questions. Is Director Mueller simply uninformed about his agency abusing these provisions? Or was he lying to Congress about those abuses? Neither case looks good, and neither suggests that we should renew those provisions.

Congress Just Sold You Out: Leadership Plans To Extend Patriot Act For Four Years With NO Concessions | Techdirt

Techdirt
by Mike Masnick

As we've discussed, there were some very questionable provisions in the Patriot Act which were set to expire last year, but got extended, officially to allow time for debate. There was none, and when the extension was set to expire, Congress extended the clauses again for 90 days, supposedly to debate them. There were some superficial discussions, but the end result is what many people knew would happen anyway: the provisions are going to be extended for four years, with no concessions or greater oversight. Not only that, but the leadership from both major parties, who have agreed to this "deal," want to pass it with little or no debate:

The deal between Senate Majority Leader Harry Reid and House Speaker John Boehner calls for a vote before May 27, when parts of the current act expire, according to officials in both parties who spoke on condition of anonymity. The idea is to pass the extension with as little debate as possible to avoid a protracted and familiar argument over the expanded power the law gives to the government.

So, let's see. The government grants itself the power to abuse the 4th Amendment and spy on people with little oversight, and it would prefer that there not be any debate over this, because pesky people might raise the fact that this is wide open for abuse, and the senators don't want to have to talk about that.

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4th Amendment? What 4th Amendment?

Supremes Say Police Can Create Conditions To Enter Home Without A Warrant | Techdirt
by Mike Masnick, TechDirt.com [Reprint]

We've been discussing various ways that our government and the courts have been slowly chipping away at the 4th Amendment, what with warrantless wiretaps, searching laptops, TSA agents groping people, etc. And the Supreme Court just took a huge chunk out of the 4th Amendment in saying that police can raid homes without a warrant if there are "exigent circumstances" -- even if those "exigent circumstances" are created by the police themselves.

The law, to date, had been that police cannot enter a home without a warrant unless they had both (a) probable cause and (b) "exigent circumstances" in which getting a warrant would not make sense. In this case, police were searching for a drug dealer who had gone into an apartment complex. Outside of one apartment, they smelled marijuana -- which created probable cause. At this point, they should have obtained a warrant. Instead, they banged on the door and shouted police. At which point they heard a scramble inside, and busted in the door, claiming that they believed the scramble was the possible destruction of the drugs. The argument then was that this noise -- even though it was entirely created due to police action -- represented exigent circumstances that allowed them to bust in the door without a warrant. The Kentucky Supreme Court said that while the noise might be exigent circumstances, since it was illegally created by the police, it could not be used.

Tragically, the Supreme Court -- by an 8-to-1 vote -- has now disagreed, saying that this is perfectly consistent with the 4th Amendment. With all due respect to the 8 Justices and the Court, I can't see how that's reasonable at all. This sets up a dreadful situation which will be abused regularly by law enforcement. It lets them create yet another situation where they may avoid oversight, by creating their own exigent circumstances, and then using that as an excuse for avoiding a warrant and any required oversight or limitations. I believe that Justice Ginsburg's dissent is much more compelling. Her dissent points out that exigent circumstances are only supposed to be used in very rare circumstances when getting a warrant is not possible or practical. Yet, in this case, the police easily could have secured a warrant quickly upon smelling marijuana.

That heavy burden has not been carried here. There was little risk that drug-related evidence would have been destroyed had the police delayed the search pending a magistrate’s authorization. As the Court recognizes, "[p]ersons in possession of valuable drugs are unlikely to destroy them unless they fear discovery by the police." ... Nothing in the record shows that, prior to the knock at the apartment door, the occupants were apprehensive about police proximity.

In fact, she notes that "Home intrusions, the Court has said, are indeed 'the chief evil against which . . .the Fourth Amendment is directed.'" So it seems positively ridiculous to claim that such a home invasion is acceptable under the 4th Amendment. This is a tragically bad ruling by the Supreme Court that will have massive and dangerous consequences. We already have law enforcement pushing the boundaries of individual privacy rights, and now they have even more tools to take that further.

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