My post,The Background Dope on DHS Recent Seizure of Domains, that I published last Saturday evening generated a significant traffic spike to my blog. I had a ton of referrers coming from facebook,twitter, tech forums and a quite a few originating from tech publications. A Techdirt.com article,Homeland Security’s Domain Name Seizure May Stretch The Law Past The Breaking Point, used my post as the technical analysis of the mechanics of the “domain seizures” and then referenced this article, Domain Name Seizures and the Limits of Civil Forfeiture, by Larry Downes to examine the legality of these domain name seizures or forfeitures.
Since my original post, we have learned that these seizures were part of the “Operation In Our Sites” initiative. Indeed, this was dubbed by the DOJ as “Operation In Our Sites 2.” It should be recalled, the first phase involved the raiding of and shutting down of 9 “pirate movie sites.” These were site shutdowns, raids, executed search warrants, bank account seizures; the domain registrant information was transferred over to ownership by DHS. In phase two, none of this is going on; nothing is being seized, no one is being raided. No one is being notified of anything or presented with any warrant. You simply have a private company acting as contractual agent of the DHS modifying the .com TLD Zone Files in cooperation with VeriSign, which is the agency that has the ICANN contractual delegated authority to manage the .com TLD.
Larry Downes is discussing the issue of “pre-trial” confiscation. I’m not lawyer but I would posit here, in “Phase II,” the issue is “pre-legal” confiscation. There is no principle of law being followed here. It’s just simple manipulation of the domain name system. Everyone knows that ICANN is subject to the laws of the US. But now, perhaps it might now be dawning on people that this means today that it is more and more becoming subject to the Authority of DHS. And simply re-constituting ICANN outside of US jurisdiction is pointless. If you are paying attention to the latest rounds of disclosures from Wikileaks, it should be obvious that the informal US jurisdictional reach is is pretty ubiquitous.
To those techno-optimists out there who think p2p is the automatic answer to counter this type of thing, I question their understanding of network theory. Any scale-free network is characterized by hubs, those nodes that are highly connected. Any p2p solution that would have a hope of bypassing or supplanting the current DNS would have to evolve a type of synchronized connection hierarchy that would be vulnerable to Statist reprisal. The issue is not a technical one. It is a political one.