US court refuses to release Spanish company's URLs
America's Immigration and Customs Enforcement (ICE) agency is trampling over the rights of non-American internet companies, damaging their businesses. Worse, an American federal judge apparently thinks this is perfectly OK, even though the Electronic Frontier Foundation reckons that "the court's First Amendment analysis is flatly wrong" and "the Supreme Court doesn't agree".
Since the EFF, along with co-amici Public Knowledge and Center for Democracy and Technology, submitted an amicus brief on the case, the judge in question, Paul A Crotty, can hardly claim ignorance as an excuse. However, it would be rude to mention the obvious alternatives.
As with previous ICE actions, the seizure and judgement (PDF) were based on having "probable cause to believe that the domain names were subject to forfeiture because they had been used to commit criminal violations of copyright law" -- something that I would guess could be applied to several hundred million websites. In this case, it was applied to Rojadirecta.com and Rojadirecta.org, sports streaming link-sites owned by the Spanish company Puerto 80, "even though a Spanish court found they did not violate copyright law", says the EFF's report.
This is a clear case of "prior restraint" being used to block free speech, so are we to assume that US courts don't have to follow the US constitution when dealing with foreign companies under US law? And as TechDirt has pointed out, whether linking to copyright content is a criminal act is also open to doubt, though the US government could certainly test this by arresting Google's Larry Page, Sergey Brin and Eric Schmidt for starters.
The EFF's Corynne McSherry says that, trying to get the seizure reversed,
Puerto 80's petition explained that while the company can host content elsewhere, its usual visitors might not know how to find it. Too bad, said the court. "Rojadirecta has a large internet presence and can simply distribute information about the seizure and its new domain to its customers," it declared. Perhaps the court thinks Puerto 80 should buy some Google ads? Would court come to the same conclusion if the site in question was youtube.com? (Maybe so, which is even more frightening).
In an earlier post about the seizure of the TVShack.net domain name, I quoted what Erik Barnett, ICE's assistant deputy director, told the Guardian:
Aside from the contravention of US trademarks, website names are central to deciding which are chosen, Barnett said: "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.
It seems doubtful that Puerto 80 would have had its domain names seized if it had not made the mistake of using US-controlled domain names. Some non-US companies whose businesses depend on .com, .net and similar suffixes might now want to consider whether this is still a sensible approach. Puerto 80 probably wishes it had started forwarding users to rojadirecta.es, which it owns, before ICE struck.