Operation In Our Sites

Legal background

In 2008, the Prioritizing Resources and Organization for Intellectual Property Act of 2008 (PRO-IP Act of 2008, H.R. 4279) was established to increase civil and criminal penalties for trademark, patent and copyright infringement. The civil forfeiture provision of 18 U.S.C. § 2323 amended the PRO-IP Act and provided the legal basis of Operation In Our Sites. The provision provides that any property used to commit or facilitate infringement of intellectual property rights would be subject to forfeiture to the United States Government.

Policy background

To protect their intellectual property, major intellectual property owners and their representatives have strengthened U.S. government enforcement of intellectual property rights. According to the Intellectual Property Enforcement Coordinator (IPEC), which was the position at the White House created by the PRO-IP Act through 15 U.S.C. § 8111 to coordinate U.S. governmental agencies that carry out the law's purpose, several policy rationales informed intellectual property enforcement, including:

NIPRCC also reasoned that Operation In Our Sites would protect consumers' health and safety because Operation In Our Sites targets websites that sell counterfeit medicine.

Domain name seizure process

"Operation In Our Sites was the most aggressive federal enforcement effort ever launched against copyright infringement online...the program would use an unprecedented tactic, site domain seizure, to shut down websites offering copyrighted material."

The domain name seizure process used by Operation In Our Sites was codified in 18 U.S.C. § 981(b)(2), which provides a legal framework for property seizures by the government. Before the seizure, government officials are supposed to investigate suspected websites to find out if they actually purchase or access counterfeit items. The government then contacts the copyright holders to confirm ownership of the intellectual property and suspected infringement. Following the investigation, ICE and NIPRCC officials present the resulting evidence to the U.S. Attorneys, and check the domain name registration.
If the domain name was registered in the U.S., the government petitions a magistrate judge to issue a seizure warrant for the domain name. With the warrant, the domain name's title and rights are transferred to the U.S. government. After the seizure, the government is supposed to send a written notice of the forfeiture deadline to the website operator within 60 days from the seizure date. The website owner can file the claim against the government within 35 days after receiving the notice. If the owner files a claim, the government has 90 days to prove that the property is subject to forfeiture. If the owner does not make a claim against the seizure, or the government successfully proves a valid seizure, the domain name is forfeited to the government.

Result of domain name seizure

After the seizure the domain name registry alters registered information about the domain name, including the IP address on its domain name server (DNS), as property of the U.S. government. When a user intends to access the website from a domain that has been seized, DNS servers reply with the government server's IP address. Initially a user who attempts to access the targeted website is directed to the governmental server and faced with the agencies' banner; in March 2014 this changed and users are instead redirected to YouTube in order to watch ICE's campaign video.

Outcome of the Operation In Our Sites

It is unclear how effective Operation In Our Sites has been in preventing websites that harm the U.S. economy, but agencies have seized a significant amount of funds and counterfeit goods from targeted websites. In April and May 2012, both DOJ and ICE released figures indicating that they had seized more than $896,000 funds and $1,500,000 counterfeit goods on commercial websites as a part of the Operation In Our Sites.

From June 2010 to late January 2014 the government has seized a total of 2,713 domain names and as of December 2013, the ICE government banners on seized domain names have been viewed more than 122 million times.

Effectiveness for protecting intellectual property

Intellectual property owners and their representatives are not surprisingly supportive of Operation In Our Sites to the government, but some critics question the effectiveness of the program since the targeted websites are not actually seized or shut down; the program in effect only increases visitor access to agencies' servers. Accused website operators targeted by this program can circumvent Operation In Our Sites by registering a new domain name, one that cannot be regulated by the U.S., and easily resume operation.

Due process critiques

In light of the U.S. Constitution, seizures without any opportunity for a hearing are limited to extraordinary situations, but pursuant to Operation In Our Sites, others have pointed out that the government is allowed to seize a targeted domain name without any prior notice to the owner. Other critics have voiced concern that domain name seizures could be used to circumvent the normal legal process in order to target websites that may prevail in full court. In addition, other critics point that Operation In Our Sites' one-sided process inevitably brings mistakes and overly broad seizures.

Negative impact on free speech

Other critics have argued that seizures of domain through Operation in Our Sites prohibits access to the all content on the allegedly infringing websites, and thus has a negative impact on free speech. Some types of targeted websites contained non-infringing speeches and conversation (ex. discussions in a chat-room, conversations in the comment section of blog posts); since the seizure operation redirects all traffic from the website, effects are felt on all material including the legitimate content that should be protected by the First Amendment of the U.S. Constitution.

Moreover, opponents of Operation In Our Sites have criticized ICE for erroneous seizure of non-infringing domain names, and the corresponding violation of the non-infringing domain holder's First Amendment rights. So far, three domain names (dajaz1.com, rojadirecta.com, and rojadirecta.org) have been seized by mistake and returned to their respective owners.

Undercutting the DMCA

Many domains targeted by Operation in Our Sites, including RojaDirecta and Dajaz1.com, were seized because they provided hyperlinks ("linked") to allegedly infringing material. Critics argue that use of government intervention to prevent websites from linking to infringing materials undercuts the Digital Millennium Copyright Act by eliminating the copyright holders' incentive for interacting cooperatively with OSPs through the DMCA established notice and takedown system. Prior to Operation in Our Sites, copyright holders had to submit takedown notices to OSPs if they wished to have links to copyright protected material removed. OSPs that complied with the takedown notices and the safe-harbor provisions outlined in the Online Copyright Infringement Liability Limitation Act received relief from the financial burden of legal fees, and damages associated with claims of secondary liability for copyright infringement. If copyright holders forgo the notice and takedown provisions outlined in the DMCA and instead elect for direct government intervention through organizations like ICE, then the government may end up with sole responsibility for policing websites that link to copyright protected material. Furthermore, website owners will no longer have the ability to correct and improved wrongs without potentially facing criminal proceedings.

Website owner lack of awareness

Hana Beshara, the public face and co-founder of NinjaVideo, was familiar with the Digital Millennium Copyright Act and expected that her NinjaVideo website would be subjected to DMCA takedown notices from copyright holders in response to infringing links on NinjaVideo; she was shocked when her house was raided by Immigration and Customs Enforcement Officers. Following the raid Beshara pleaded guilty to criminal copyright infringement and was sentenced to 22 months in prison, 2 years of probation and a hefty fine.

Lobbying by the media industry

In an article published in the bimonthly political magazine The American Prospect, the author proposes that lobbying efforts on behalf of the media industry played a critical role in the adoption and implementation of Operation in Our Sites. The article further asserts that in the year prior to inception of Operation In Our Sites, large media conglomerates began providing ICE agents with lists of potential targets for the first round of raids. ICE was for some time responsible for regulating and eliminating sales of counterfeit merchandise, but pressure from the entertainment industry, through lobbying and other efforts, expanded the agency's function to include enforcement against piracy. Lobbying spending by the TV, music and movie industry did in fact increase dramatically from 2004 to 2010; it peaked at $123 million in 2011, then dropped to around $118 million where it stayed from 2012 to 2013.