Oregon Senator criticizes domain name seizures

Sen. Ron Wyden, D-Ore., is concerned about an effort by the Homeland Security Department's Immigration and Customs Enforcement agency and the Justice Department to combat online piracy and counterfeiting by seizing Internet domain names.

Wyden wrote Attorney General Eric Holder and ICE Director John Morton on Wednesday seeking more information about their "Operation In Our Sites," saying that it represents a "major shift" in how the United States combats online infringement.

ICE announced its latest targets on Wednesday when it seized the Internet addresses of 10 websites accused of illegally offering access to sports events and other copyright-protected content.

Wyden noted that until Operation In Our Sites was launched last summer, the government generally tackled online piracy under the "notice and takedown" provision of the 1998 Digital Millennium Copyright Act, which enabled copyright holders to contact websites that contain infringing content and ask them to take that content down.

"This process enables infringing content to be targeted for removal from a website without impinging on legitimate speech that the website might also facilitate," Wyden wrote.

He noted that if the Obama administration plans to continue the operation, it must "at a minimum" provide more clarity and detail about the types of websites it targets.

Among other questions, Wyden asked Holder and Morton approximately how many prosecutions and indictments were related to the 100 domain names seized so far under the operation and what type of due process the government provided to the domain-name holders. He also asked whether offering links to sites or discussing which sites may offer pirated content or counterfeit products is considered to be distribution of infringing content or products.

Wyden requested a list of the domains seized so far and the criteria for selecting them.

At the State of the Net conference last month, Morton defended the operation, saying that the agency has followed the law by seeking court orders for its actions. He pledged to continue seizing domain names of sites that infringe on U.S. intellectual property. "We will follow criminal activity where it occurs, including on the Internet," Morton said.

Wyden has criticized legislation introduced in the last Congress by Senate Judiciary Chairman Patrick Leahy, D-Vt., aimed at combating online piracy and counterfeiting on foreign websites. It included a provision allowing the Justice Department to seek court orders to seize domain names of sites that contain infringing content or offer counterfeit products. Wyden essentially blocked the bill from moving to the Senate floor after the Senate Judiciary Committee approved it in November.

Several tech and civil-liberties advocacy groups also have criticized the legislation, which Leahy is expected to reintroduce in this Congress.

"While I believe it important to combat copyright piracy, I grow concerned when the methods used may not be effective and could stifle constitutionally protected speech [and] job-creating innovation and give license to foreign regimes to censor the Internet," Wyden said in his letter.