ICE Reluctantly Releases A Small Number Of Heavily Redacted Domain Seizure Docs, Holds The Rest Hostage

from the but-of-course dept

Back in December of 2010, Aaron Swartz filed a Freedom of Information Act request regarding the Immigrations and Customs Enforcement (ICE) efforts to seize, without any notification or adversarial hearings, domain names which ICE claimed were facilitating copyright and/or trademark infringement. After nearly two years of back and forth (including ICE apparently losing an updated request and closing the request because of it), ICE has finally delivered 100 pages worth of heavily redacted material which are close to useless. They are also claiming that there are another 16,137 records out there, but they want him to pay over $1,000 to get the rest. They told him if he didn't cough up the money within a few days, they would consider the request closed. Aaron, with the help of the Muckrock site (which helps people file FOIAs), is appealing this decision.

In the meantime, however, we have 100 mostly useless documents that appear to just show the warrants that US Magistrate Judge Alan Kay approved on the morning of November 23rd, 2011. Of course, these are completely redacted, so you don't even know what domains they're referring to. In going through the documents, the only thing of interest that I spotted was that the judge time stamped each warrant signature, and many of them are mere minutes from one another -- at least raising some questions concerning how carefully the judge reviewed each individual case before granting the warrant that allowed the feds to then seize and shut down those sites. Considering that we already have two known cases -- Dajaz1 and Rojadirecta -- in which it later came out that the government did not have the necessary evidence, and where the feds were embarrassingly forced to hand back the domains and drop legal proceedings, it seems that a judge should be expected to at least spend some time understanding why it is he's signing off on an order to take down speech.

Either way, it really does seem like these documents being the first 100 released was, perhaps, done on purpose, to make sure the released documents don't actually get at what Swartz actually requested, which was:
  • Any guidelines or protocols for ICE agents about the procedures for seizing domains
  • Any communications between ICE and other government agencies with regard to the seized domains
  • Any communications between ICE and intellectual property owners requesting domains be seized or discussing seized domains
  • Any court filings requesting authorization to seize domains
  • Any internal emails mentioning the seized sites
  • Any legal memos mentioning the seized sites
Instead, he gets 100 pages of heavily redacted warrants? What a joke. And, is it that difficult to expect that a judge will take more than a minute or two to understand the issues at hand when signing off on a warrant to completely shut down a website with no adversarial hearing with the site owner?
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Filed Under: aaron swartz, domain seizures, foia, ice, redacted

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  1. identicon
    Anonymous Coward, 9 Oct 2012 @ 12:34pm

    Not sure why eveyone's talking about national security.

    The exemptions claimed were as follows:

    Privacy Act Exemption (j)(2) - completely inapplicable and unprofessional. Privacy Act Exemptions don't work that way, and this is purely a FOIA request.

    FOIA Exemption 6 - Personal privacy. Generally noncontroversial, though subject to accusations of overclaiming.

    FOIA Exemption 7(C) - Personal privacy wrt information collected for law enforcement purposes. Stronger protection than exemption 6, due to the potentially heightened sensitivity of law enforcement records.

    FOIA Exemption 7(E) - Risk of circumvention. If they disclose how they enforce laws, the precise methods of investigation, etc., a reasonably clever criminal will be able to circumvent the laws/enforcement.

    7(E) is in a general sense legitimate here, but also potentially subject to huge overclaiming.

    The FOIA is a (relatively) straightforward law with a significant background of court precedent, and DOJ had published the DOJ interpretations and business practices for processing FOIA requests in an indexed publicly available form.

    Also, technically, the warrants are responsive documents, so it may be sleazy, but it's a valid response.

    That being said, the processing here as a whole was very poor form.

    Lack of response is a sad fact of FOIA processing, but it still looks bad, especially considering the total lack of response in the face of several follow-up inquiries.

    The office claimed several times that they would provide a fee estimate if fees were to exceed a certain threshold, but no notification was sent. Nevertheless, they put in effort far exceeding the fee agreement and notification threshold. Collection of fees is ostensibly to offset the cost of FOIA, hence the ability to close a request for lack of a fee agreement. Incurring assessible fees without a requisite fee agreement is fiscally irresponsible, as well as a waste of valuable processing time.

    Not familiar with DHS FOIA policies, but 10 calendar days is an extremely short time frame, even if the letter is received immediately. The time frame had already expired by the time the response made its way through the mail.

    Finally, the redacted documents don't seem to pass muster. Each redacted section is clearly marked, but no exemption s claimed. Each redacted portion should be accompanied by the applicable exemptions claimed for that specific portion. Especially when there is such a marked disparity between Exemptions 6 and 7(E).

    This reflects poorly on the FOIA program as a whole. Even looked upon with a very forgiving lens, there's a lot of basic stuff they could have done, and much of it is stuff they should have done.

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