erik barnett – Techdirt (original) (raw)

DHS Official Thinks People Should Have To Give Up Their Anonymity To Use The Internet

from the screwing-the-nation-for-the-good-of-the-nation dept

Apparently, the only way to stop terrorists from hating us for our freedom is to strip away those offensive freedoms.

Erik Barnett, the DHS’s attache to the European Union, pitched some freedom-stripping ideas to a presumably more receptive audience via an article for a French policy magazine. Leveraging both the recent Paris attacks and the omnipresent law enforcement excuse for any bad idea — child porn — Barnett suggested victory in the War on Terror can be achieved by stripping internet users of their anonymity. You know, all of them, not just the terrorists.

After a short anecdote about a successful child porn prosecution in Europe. Barnett gets straight to the point. Here’s Kieren McCarthy of The Register.

Before we have an opportunity to celebrate, however, Barnett jumps straight to terrorism. “How much of the potential jihadists’ data should intelligence agencies or law enforcement be able to examine to protect citizenry from terrorist attack?”, he poses. The answer, of course, is everything.

Then the pitch: “As the use of technology by human beings grows and we look at ethical and philosophical questions surrounding ownership of data and privacy interests, we must start to ask how much of the user’s data is fair game for law enforcement to protect children from sexual abuse?”

In short, if you value internet-related freedoms, you’re basically supporting terrorism and child porn. No person — especially no legislator — would want to be seen as valuing personal freedoms over the good of the nation’s infrastructure/children. And, because terrible ideas must be buttressed by terrible analogies, Barnett theorizes that the internet is basically a car.

“When a person drives a car on a highway, he or she agrees to display a license plate. The license plate’s identifiers are ignored most of the time by law enforcement [unless] the car is involved in a legal infraction or otherwise becomes a matter of public interest. Similarly, should not every individual be required to display a ‘license plate’ on the digital super-highway?”

To use the Fourth Amendment for a moment, a lowered expectation of privacy is in play when operating a vehicle on public roads. However, the Fourth Amendment affords a great deal of privacy to the interior of people’s homes. Because the government (in most cases) does not provide internet access, it has no basis to demand ongoing access to citizens’ internet activities. It may acquire this information (along with subscriber info) using search warrants and subpoenas during the course of investigations, but it cannot demand (or at least shouldn’t) — for national security reasons or otherwise — that every internet user be immediately identifiable.

Discussions of requiring a license for internet usage have been raised previously but rarely go anywhere. To do so is to start heading down the path to totalitarianism. Unfortunately, being in a constant state of war against an ambiguous foe often results in legislators and government officials declaring their interest in seeing this path not only surveyed, but the first layer of asphalt applied.

Barnett is one of this number, and he wants a strawman to serve as construction foreman.

“Social media is used to generate support for terrorist groups … How appropriate is the law enforcement engagement of the social media companies to reveal digital fingerprints of these extremist groups? Who determines the level of ‘extremism’ of a group? Few would disagree that law enforcement and intelligence services should have the ability…”

Actually, lots of people would disagree, starting with many citizens and running all the way up to their service providers. On top of that, the nation’s courts would find the institution of a law that strips the anonymity of internet users to be unconstitutional, so that’s another hurdle Barnett and like-minded officials would not be able to clear, no matter their stated justification.

Filed Under: anonymity, dhs, erik barnett, internet, internet license, surveillance

Hollywood Astroturf Group Releases Ad Saying It Needs SOPA To Shut Down Megaupload… Five Days After Megaupload Is Shut Down

from the you-guys-make-me-laugh dept

CreativeAmerica, the astroturfing group that pretends it’s a “grassroots” operation — but which is funded by the major Hollywood studios and run by former studio/MPAA execs — is amazingly inept at communicating with the public, especially considering these guys are supposed to be communications experts. Remember, this is the same group who, while fighting for stronger laws against copying, flat out copied the email of anti-SOPA activists, and changed a few words to push their own pro-SOPA message.

Their latest move is even more bizarre. The group is touting its latest slickly produced propaganda film, insisting that SOPA/PIPA are needed for a variety of reasons — almost none of which are true. It throws out the bogus claim of jobs being at risk, even though the evidence shows otherwise. But where it gets totally ridiculous is that the video focuses mostly on Megaupload and Kim Dotcom/Schmitz. The point of focusing on Megaupload? To claim that it can’t be reached under existing law. Seriously. It talks about Megaupload for a while (claiming that it brings in $300 million per year — which turns out to be 10x the actual number, by the way) and then says:

US law enforcement is only permitted to shut down US-based IP addresses. Overseas sites, like Megaupload and Megavideo, and the Swedish-based Pirate Bay, are out of reach.

Yes. And they’re releasing this video five whole days after the US government showed that existing laws actually do allow them to reach Megaupload and shut it down. So, um, why do we need these new laws again?

Seriously, the video shows the level of lies that CreativeAmerica and the MPAA will spread to try to pass new, even broader laws. What’s stunning is how blatant they are about it, releasing this video even after events from a week ago already proved it wrong.

Furthermore, almost everything else in that sentence is wrong, beyond just the idea that Megaupload was supposedly out of reach of US law enforcement. Current law enforcement can seize US domains, which are different from IP addresses. And, even more ridiculously, in the video, right before they claim that US law enforcement can’t reach foreign sites… they show a clip of TVShack.net — a UK-based site that the government seized and shut down (and is now trying to extradite its founder, student Richard O’Dwyer).

Why must CreativeAmerica lie? Perhaps because the facts just aren’t on its side.

The video has a number of other problems. It relies heavily on Erik Barnett, Deputy Director for ICE, regularly seen in various press releases about ICE’s program of illegally censoring websites. It really makes you wonder why a government official is appearing in a video for a lobbying group trying to pass new laws. Perhaps it’s not illegal, but it certainly raises serious questions about the cozy relationship between ICE and the MPAA. Barnett has a history of being less than truthful about ICE activities. Last summer, you may remember, he flat out lied, in claiming that none of the sites seized by ICE were challenging the seizures, when he knew that a bunch of sites had already brought up challenges.

Now Barnett is claiming that this program of seizing domains without any due process is a huge success because they seized “the nine most popular content theft sites out there.” Even ignoring the misuse of the word “theft” (shouldn’t law enforcement know how to use the word properly?), this is laughable. I mean, elsewhere in the video, they claim that TPB and Megaupload are the two most popular, but they weren’t seized when the video was made. Instead, what ICE seized was a bunch of hip hop blogs (that weren’t even that big), including one that it held for a year before the Justice Department was forced to effectively admit that ICE totally screwed up and the domain had to be returned. Other domains are still being held in this manner as well. The fact that Barnett would flat out lie and pretend that this program of blatant censorship is some sort of big success… in an industry propaganda film, certainly raises some significant questions about ICE and how it’s run these days.

The video has some other laughable moments… such as talking to Bruce Leddy, the writer/director of the film Wedding Weekend (originally called “Sing Now Or Forever Hold Your Peace” or “Shut Up And Sing”), who freaks out over the fact that his movie was available online, and is decrying all of the “losses.” A couple problems with this. Wedding Weekend was apparently a terrible movie. The movie made a grand total of 15,998onitsopeningweekendon11screens,andwasoutoftheatersaweeklater,grossingagrandtotalof15,998 on its opening weekend on 11 screens, and was out of theaters a week later, grossing a grand total of 15,998onitsopeningweekendon11screens,andwasoutoftheatersaweeklater,grossingagrandtotalof20,903. And it wasn’t because of infringement. It was because most people thought it was awful. Most of the professional reviews make it sound pretty bad, using words and phrases like “uneven,” “less tolerable,” “clunky narration,” “one-trait characterizations,” “the title is the least of the film’s problems,” etc. User reviews are more harsh. Over at Rotten Tomatoes one user notes:

This film is horrible. It has no redeeming features what so ever. I could criticise every single aspect of this film but I can’t be bothered, it would be quicker for me to tell you about what is good about it. So here it goes, the only good thing about this film is that it has damaged the careers of everyone who worked on it. Hopefully. Never have I wanted to punch every single person on screen….

Somehow, I get the feeling that its availability online was the least of its problems. I’d be surprised if it actually got that many downloads at all. Meanwhile, we keep hearing stories of smart filmmakers embracing the internet, and giving people reasons to buy (starting with a better quality movie). He claims, “there’s no recourse,” but that’s ridiculous. One only needs to look at the experiences of Louis CK to know that, even if your videos end up on torrent sites, if you handle it properly, you can still cash in. Leddy’s failure to make a good movie and his subsequent failure to put in place a good business model is no excuse for passing a bad law with massive unintended consequences.

Still, this really shows the incredible desperation of the MPAA, though. The astroturf group it has created is really reaching in its efforts to come up with some sort of justification for SOPA/PIPA…

Filed Under: astroturfing, copyright, dhs, erik barnett, grassroots, ice, pipa, protect ip, sopa
Companies: creativeamerica, megaupload, mpaa

Homeland Security Working Hard To Make Sure No One Wants To Use .com Or .net Domains

from the are-they-insane? dept

Remember Erik Barnett? He’s the deputy director of Homeland Security’s Immigration and Customs Enforcement (ICE) unit, who seems to have a way with words. He’s the guy who admitted that Homeland Security was censoring websites because entertainment companies asked them to. He’s also the guy who lied about whether or not anyone was challenging domain seizures when he knew those challenges were underway.

Now he’s out trying to defend the ridiculously short-sighted decision by the US government try to extradite Richard O’Dwyer from the UK, for running the site TVshack, despite it almost certainly being legal in the UK. According to Barnett, none of that seems to matter, because O’Dwyer was using a .net.

“The jurisdiction we have over these sites right now really is the use of the domain name registry system in the United States. That’s the key.”

The only necessary “nexus to the US” is a .com or .net web address for which Verisign acts as the official registry operator, he said.

That’s the key, but it’s also ridiculous and stupidly self-damaging for the US. On a jurisdictional basis, there are a variety of different factors that people use to determine what the proper jurisdiction is, and relying solely on the registry, thus making all .com and .net (among other) domains US property, is simply ridiculous. Almost anyone thinking about it would realize that if a site is run by someone in the UK and hosted on servers in the UK, it’s silly and counter-factual to claim that it’s really US property.

Of course, the end result of this will be to drive more and more foreigners away from using US domain names. None of this will do anything to stop infringement, which Barnett seems to think is his job. But it will harm American companies (the ones he claims he’s trying to help) by getting foreign internet users to stay away from them due to the liability that some hotshot in the Justice Department suddenly decides he or she wants to pull someone from their home and ship them to the US to face criminal charges on something that may have been completely legal where they’re from.

Filed Under: domains, erik barnett, extradition, homeland security, ice, nexus

Senator Leahy Praises US Gov't Censorship Of Websites As ICE Takes Another Victory Lap

from the they-live-in-an-alternate-reality dept

It really would be kind of funny to watch the US government congratulate itself for censorship of websites if it wasn’t just kind of sad. At a Senate Judiciary committee hearing on intellectual property issues, Senator Patrick Leahy (top 3 campaign contribution sources: lawyers, entertainment industry, lobbyists — you can’t make this stuff up) praised administration officials for censoring websites based on questionable accusations from an entertainment industry who seems to think that their own content creators are running “pirate” websites.

Of course, Leahy apparently doesn’t recognize the irony of condemning internet censorship in other countries while praising it at home when it benefits his biggest campaign contributors.

The same hearing gave ICE assistant director Erik Barnett one more chance to declare victory, though I note with some amusement that the text of Barnett’s speech this time leaves out the bogus claim that no sites are challenging the seizures. Apparently he’s realized that some people might call him on it when he blatantly misrepresents reality.

Either way, none of this dog and pony show is much of a surprise. You certainly wouldn’t expect Senator Leahy to call one of the people who had their sites illegally seized to hear their side of the story. I mean, that might be embarrassing to actually hear that there’s more than one side to this. He might have to hear about how the content creators themselves sent the content in question to these sites, and how the ICE affidavit to seize them misstated the facts of whether or not the content was infringing. He might have to hear how ICE didn’t even ask the actual copyright holders, in most cases. He might have to hear how ICE doesn’t seem to understand the technology, and doesn’t seem to understand the difference between linking and distribution. He doesn’t have to hear about how hardworking people who helped promote new artists and build their careers now live in fear of their own government. He doesn’t have to hear about how these people are afraid to speak out, because the Justice Department has told them that if they do, they may face criminal charges.

No, it’s easier to put on a show and pat yourself on the back for censoring those people and pretend that you’ve done something productive.

Filed Under: censorship, copyright, dhs, domain seizures, erik barnett, free speech, ice, patrick leahy, victoria espinel

The List Of Sites Challenging Domain Seizures

from the did-erik-barnett-lie? dept

Last week, we wrote about how the Assistant Deputy Director of the US Immigrations and Customs Enforcement (ICE) unit of the Department of Homeland Security, Erik Barnett, was in Stockholm talking up the “success” of ICE’s legally questionable domain seizure program. One line in his speech specifically caught our attention:

“The notice says that you can challenge the seizure, but no one has yet.”

Now, as we stated via our own investigations, we knew this was untrue, and that multiple sites had been trying to challenge the seizures, but had found the process to be incredibly difficult. I had thought that perhaps Barnett was being misleading, but technically truthful, in that perhaps none of the official challenges had been filed yet.

However, a confidential source with knowledge of these things suggested that Barnett is either uninformed or lying in his comments that no one has challenged the seizures. That source has passed along a list that was put together within ICE of the sites that are, in fact, trying to get their domains back. The list is as follows:

I asked the press office at ICE to explain the discrepancy in Barnett’s statements with reality, and the response was that the sites that are trying to get their domains back have filed a different type of challenge than the one Barnett is talking about, and therefore “at this point in time the statement remains accurate.” Looking at the details, the sites in question appear to have chosen to focus on the process that is most likely to get their domains returned. The “other process” that Barnett “meant” not only is more convoluted and limited, but runs additional risks for the domain holders. Either way, it seems pretty questionable for ICE to suggest publicly that no one has challenged the seizures, when it’s pretty clear that these sites are very much challenging them. Update: I’ve discussed this with a few folks with knowledge of all this, and they suggest ICE’s excuse is hogwash, saying there is only one procedure, and all the sites in question are using it…

Filed Under: challenges, dhs, domain seizures, erik barnett, ice

ICE Declares 'Mission Accomplished' On Domain Seizures

from the a-success? dept

It appears that assistant deputy director of ICE, Erik Barnett, is going around talking up the massive success of ICE’s potentially illegal domain seizure regime. SD points us some coverage of Barnett speaking in Stockholm, where he bragged about just how successful the program has been, making a series of highly questionable claims:

“People told us that we will fail if we seize these domain names, and that we?ll look foolish,” said Erik Barnett, assistant deputy director of the US government?s Immigration and Customs Enforcement (ICE) team, which began conducting Operation In Our Sites last year. “People said [that the infringers] would come back. But the reality is they didn?t ? that was surprising.”

I can’t tell if Barnett is just totally and completely uninformed here… or lying. As plenty of people have noted, at least on the copyright side, the vast majority of the sites have reappeared, often within hours.

Barnett also makes this highly questionable claim:

“The notice says that you can challenge the seizure, but no one has yet,” he added.

Yeah, that’s because the US government has made it incredibly convoluted and difficult to actually challenge the seizure. While Barnett notes that the notice says you can, there is no process, and the Justice Department has done everything it can to avoid letting anyone challenge the seizure.

But the point of his speech seemed to be to suggest that other countries follow suit and begin censoring websites with no trial as well. Isn’t that nice, when US officials promote censorship in other countries?

Separately, Barnett spoke to The Bureau of National Affairs (BNA) for an interview about the seizures. Unfortunately, it’s totally locked up behind a paywall, but someone (anonymously) sent me a copy, and I’d like to highlight some of Barnett’s more ridiculous statements there as well. He kicks it off by again thanking Congress for passing the ProIP Act, which snuck the seizure bit into law, with most people believing it meant seizing actual tools of infringement, not domain names. From there, he discusses how ICE decides what to seize:

The popularity of the website, because how popular a website is tells us how profitable. We look at a website’s Alexa rankings, because the lower the Alexa ranking–meaning the more traffic a website receives–directly correlates to higher proceeds from sales, or to more revenue from advertisements.

Alexa?!? My goodness. Alexa is perhaps the least accurate website ranking system out there and is considered a total joke. Do a Google search on Alexa rankings suck, and you get nearly 34 million results. They’re not even close to accurate. This does not build confidence in ICE’s technological knowhow. Alexa is to website rankings what the original AOL was to the internet. It’s training wheels, but not an accurate representation. Furthermore, higher popularity often does not mean greater revenue, but again, ICE is demonstrating its cluelessness about internet business models.

Whether the website is commercial in nature: We only go after websites that run advertisements, or sell subscriptions or merchandise. We are not looking at community forums or chat rooms. Rather, we are looking for websites that are making a substantial amount of money from these websites.

This is also totally bogus. Any site can run ads, but often those ads barely cover server fees. Does that really make it a “commercial” enterprise? And he’s wrong when he says they’re not looking at community forums or chat rooms, because at least some of the domains seized were for community forums. And as for “substantial amount of money,” again that’s difficult to fathom. In the various affidavits used to seize these sites, the info they received about ad revenue suggested miniscule amounts — maybe a few hundred per month, which probably barely covered hosting, if at all. In the one actual lawsuit filed, the evidence suggested a grand total of $90,000 made in ad revenue over five years, or less than minimum wage. How is that “substantial amounts of money”?

Also interesting is that he explains how they’re simply researching sites recommended by rights holders and choosing who to go after:

Once that referral is made, there will be some initial follow up by an ICE agent to see if the site falls into those general categories of what we are looking for. If it is a site that meets the criteria, what we will do is start an undercover criminal investigation, and ultimately the agent will look at the site and?working within the statutes, 18 U.S.C. Section 2319 and Section 2320?they will look at whether this is a site that is going to meet those factors.

The Justice Department then will also then have an opportunity to look at the site through the evidence that is presented either to an Assistant U.S. Attorney, or to a Justice Department trial attorney, and they will make a determination of whether or not the site meets their standards for prosecution. And then ultimately we will present that evidence to a federal magistrate judge.

He then suggests that they’re seizing over 50% of the domains that have been submitted by rights holders! He claims that in the second round of seizures, for 77 URLs, they had received requests to look at 130, but only seized 77. This seems bizarre. He seems to take the default position that if a rightsholder complains about a site, it must be infringing, and he wishes they could seize more.

No wonder they seized so many sites in error. ICE seems to come at this from not just a technologically clueless position, but also one where they automatically assume that the rightsholder is right. Who knew ICE’s mission was to prop up failing business models?

Towards the end of the interview, he’s finally asked about the fact that so many of these sites popped right back up. And Barnett tries to turn this into a claim that it shows how successful ICE has been.

What may sound odd is that from a law enforcement perspective, that actually is also a metric of success. There was some general complacency on the part of the criminals who were engaging in trademark and copyright infringement without really any threat of enforcement. You now have individuals who have to spend more time and more money on work-arounds or diversions.

Once again, this either shows Barnett blowing smoke, or being technologically clueless. Most of these sites popped back up pretty quickly. Getting a new domain is pretty cheap and fast.

To be honest, I’m pretty disappointed that BNA — an excellent publication — failed to ask the serious questions about the constitutionality of the seizures, and the fact that they appear to violate basic due process and prior restraint issues found in the case law. I’m sure Barnett would have brushed off those questions, but you get the feeling sometimes that the folks at the top of ICE haven’t even considered these things.

Filed Under: domain seizures, erik barnett, homeland security, ice