Feds drive censorship in raid to stop sale of counterfeit merchandise

Selling products with fake logos is illegal, but when did ICE get a pass on the First Amendment?

Federal authorities seized 150 domain names and shut down the retail-sale sites associated with them, on charges they were selling merchandise that was counterfeit, pirated or illegally imported into the U.S.

The sites – with names like reeboksite.com, shopsbag.com, verycheapjerseys.com and officialpumashop.com – were seized Friday by agents of the FBI and Immigration and Customs Enforcement (ICE) Saturday, according to ICE spokesperson Gillian Christensen.

The raids were part of an ongoing anti-counterfeiting effort by ICE called Operation In Our Sites, under which it took down 82 domains in a "Cyber Monday crackdown" at this time last year according to the blog TorrentFreak, which broke the news Friday.

Last year the focus was on copyright-protected material, principally download sites such as Torrent-Finder that had been accused of helping distributed protected material, as well as several that allowed customers to view media streamed to them but not keep it, according to TorrentFreak.

This year the focus was on sites "illegally selling and distributing counterfeit merchandise," according to an ICE announcement this morning.

The announcement quotes Attorney General Eric Holder as saying counterfeit merchandise – mostly sports jerseys golf equipment, DVDs, handbags, sunglasses and other accessories in this case – costs the U.S. jobs and revenue from the manufacture and sale of legitimate goods.

ICE's timing is consistent with last year – hitting counterfeit sites just before "Cyber Monday," reputed to be the first big online shopping day of the year. Timing the raids for the day Americans are paying the most attention to online retail makes it more likely the public will actually notice an effort to enforce copyright and trademark laws on knockoff merchandise.

Conducting the raids – with twice as long a list of sites being shut down as last year – just as nearly every business, civil rights and online-advocacy group in the country is gearing up to oppose the draconian Stop Online Piracy Act (SOPA).

SOPA tightens restrictions on what are considered to be copyrighted materials and removes much of the presumption-of-innocence from those accused of violating it. One portion would allow the Dept. of Justice to disappear sites alleged to have broken copyright simply by ordering owners of DNS servers to remove the offending domain name from their databases.

The sites would still exist, but would be finable only by search or by typing in a specific domain name.

Opponents have united to sponsor American Censorship Day, and predicted SOPA will drive the creation of online restrictions they call the Great Firewall of America as an unflattering comparison to the Great Firewall of China – the most-infamous government-owned censorship filters in the world.

SOPA doesn’t actually have much to do with the ICE's anti-counterfeiting effort, at least this year.

Last year ICE appeared to be doing the bidding of movie- and software-industry lobbyists who call every illegal download a knife in the back of the benevolent forces of creativity.

This year ICE is, at least, focusing on genuine fakes rather than copyright and censorship issues that are debatable.

That it has avoided the main SOPA conflict does not mean ICE is contributing to a resolution of the copyright or free speech issues raised by SOPA.

It does show ICE knows how to avoid drawing more political flak than it usually gets for its policies of controlling immigration to the U.S. either far too strictly, or hardly at all, depending on which end of the political spectrum is the source of the criticism.

It doesn't make the Fourth Amendment issues any clearer, either. What right does ICE have to shut down a whole web site after only charging its owners with a crime?

It should be able to prevent the sale of illegal goods, but information on the web site itself is protected speech, as is ownership of the domain.

The owners have not even been tried, let alone convicted of counterfeiting. Even if they were, you'd have a hard time making the case that ICE should be able to shut down an outlet for legal information, even if it is about illegal merchandise.

With no conviction, it's hard to see what part of the whole operation is justified except a raid on the physical offices of the sites – under a properly acquired court order – in response to complaints of illegal import or sale of products with faked logos.

ICE would not be allowed to stop the owners from emailing, posting or talking about their products, points of view or legal situation if their stores existed only in physical space.

There is nothing about the Internet that would change that protection for online outlets.

ICE avoided the main touch points of the SOPA debate by focusing on fake designer goods all right; but it inched forward the real-world application of censorship as additional punishment for people charged with breaking laws unrelated to the content they posted.

If ICE claims counterfeit Reeboks are a good enough reason to eliminate First Amendment protections the same way SOPA will if it's passed, someone's got to call counterfeit on both ideas and shut them down to protect the Constitution and primary rights of U.S. citizens. Those are a lot more worthy of protection than somebody's trademark on a line of otherwise indistinguishable handbags, sunglasses and sneakers.

Read more of Kevin Fogarty's CoreIT blog and follow the latest IT news at ITworld. Follow Kevin on Twitter at @KevinFogarty. For the latest IT news, analysis and how-tos, follow ITworld on Twitter and Facebook.

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