Alumni, Peter Anthony Tariche
Cross posted on Peter’s blog.
Recently the United States Customs and Enforcement(ICE) agency has shutdown more than a hundred .com and .net websites, under the grounds these websites are under U.S. jurisdiction. Erik Barnett, Assistant Deputy Director for ICE, claims the United States has jurisdiction over all .com and .net websites because all Domain Name Service(DNS) indexes are “routed” through Verisign, a United States based company. In this article, I will outline three protests against the over-expansion of ICE’s power: jurisdiction, international law, and constitutional law. And, ultimately, I will question the very nature of intellectual privilege that has lead to these abuses. First, let us debunk the argument the United States has jurisdiction over all .net and .com websites.
Let me be clear: under the current rule of law, the U.S. government has power to seize domains that do not follow the law in their territorial rule. The ability of the United States to enforce these laws, is curtailed by the Bill of Rights and limited in ways which I will address later in this article. But, the United States does not have the power or authority to apply its jurisdiction over entities outside of its territorial rule, by mere definition; jurisdiction outside of territorial rule is enforced through agreements made by international actors. The question now is: does the United States have the power to enforce its jurisprudence over entities that are headquartered in their territorial rule but cross international borders, like multinational corporations? The short answer is no. Let me propose the question: does the United States require multinational corporations to pay its foreign employees, outside of its territorial rule, federal minimum wage? The United States Supreme Court has upheld that the federal government has no such power. Now, this is not to say the Supreme Court has not said the federal government does not have the power to regulate the conduct of these multinational corporations, but these decisions also take into account the jurisdiction of international actors. Under the current rule of law, the claim ICE is making would not even be upheld in court, and this is not even the very nature of domain name services. The truth is these domain name service providers that are being seized by ICE are completely outside of the United States. To understand this, let me briefly explain what a domain name service provider is, and what a domain name index is. A domain name service is a pointer that translates a name to a given address, in this case an Internet protocol address. A domain name index registrar like Verisign translates the top-tier domains such as .net and .com. and points to the given registrar of the domain name. No information outside of the header’s pointers are ever directed through these registrars. For example, when you visit google.com, your browser is pointed by the top-tier domain(TLD) to its lower-tier(Google), which then points to an IP address, and your browser then pulls information directly off of the given address directly to the client’s browser. In laymen terms, DNS acts as nothing more than a physical address, while the data between two individual entities are directly sent to one another. Currently the domains ICE is seizing are outside of the United States, and are under the jurisdiction of other states. This implores only one thing: the United States is contesting the jurisdiction and sovereignty of other nations; an act some would call war. To understand how jurisdiction and sovereignty work in the realm of what political scientists call international anarchy, we must understand how intellectual privilege is enforced through International Law.
The primary enforcement mechanism of intellectual privilege in international relations is treaties. The first major treaty signed over intellectual privilege between international actors was the Berne Convention of 1886. The United States did not ratify this treaty until 1988. Let me note: this is the only constitutional way to enforce intellectual privilege across borders. Other intellectual privilege treaties have been signed since the Internet’s creation, one such treaty is the World Intellectual Property Organization Treaty(WIPO); this treaty was ratified in the United States under the Digital Millennium Copyright Act. The WIPO treaty is enforced by many states around the world. And, of course, if there is a conflict over intellectual privilege between these states that have signed this treaty, they use the proper mechanisms described in the treaty to solve disputes. ICE is currently circumventing these mechanisms, which are the proper legal means to enforce the notion of intellectual privilege. To reject this notion is to reject the rule of law. A third concern I have with the over-extension of ICE’s power is the realm of their constitutional limits, the natural rights of those around the world, and the rights protected by the United States government in their agreement with the people of the United States: the Bill of Rights.
To reject the fact the United States Bill of Rights enforces natural rights, is to reject the rich history given to us by the Founders of the United States. One of the most important natural rights that is to be protected by the U.S. government is the Freedom of Speech. An ally to liberty, the Electronic Frontier Foundation, recently wrote an amicus brief over these concerns. The Electronic Frontier Foundation takes note that many of the domains being seized by ICE never contained intellectual privilege violations, but instead contained links to sites that may be committing those violations. This of course was found unconstitutional in Ctr. for Democracy and Tech. v. Pappert. Not to mention, most of the websites that are found in violation of Intellectual Privilege, are sites directly suggested to them by the MPAA and the RIAA. In an open letter to ICE, Senator Ronald Wyden has addressed the fact these sites have not been able to defend themselves from domain name seizures in a court of law. In their amicus brief, the Electronic Frontier Foundation(EFF) notes:
Basically, the EFF proposes a fundamental problem with domain name seizures: it censors speech that is non-infringing to intellectual privilege. So, under what grounds does ICE have the power to seize domain names? Well of course they have the powers granted to them by Congress, but under constitutional limits. In my belief, in their constitutional boundaries, ICE only has the power to issue warrants against websites in the United States that have violated intellectual privilege. So far, I have addressed several concerns with the abuses ICE is committing internationally and domestically. So what has lead to these abuses? I argue it is the very nature of intellectual privilege that has lead to this abuse of power.
If you have not already noticed, I have supplemented the word property for privilege in “intellectual property.” Why you ask? The phrase “intellectual property” is a misnomer. Property is non-rivalrous in consumption, tangible. Stephan Kinesella, in his work Against Intellectual Property writes:
The truth is that, unlike other resources, ideas are not scarce. Or as a Bouckeratt puts it: “only naturally scarce entities over which physical control is possible are candidates” to be real property. Stephan Kinsella writes:
This, I believe, justifies the phrase “intellectual privilege,” because it is nothing more than the state granting a monopoly. Of course, by its very nature, “intellectual property” is thus a creation of the state. This of course leads state actors and entities to compete over such a privilege. And, in many ways this power is controlled by large entities. In the United States, such a privilege (IP), to own ideas, was primarily at the mercy of the state until the Bayh-Dole Act of 1980, but with contentions. It turns out that many of these “property rights” only exist because the government has deemed that they do, of course under the influence and lobbying of large corporations like Disney. The power of corporations, unions, and other institutions to influence the state, by very nature has created the “right” of “intellectual property.” So, we should not be surprised by the recent acts ICE has committed or by the grand amount of influence the MPAA and the RIAA have over our government; after all it is in their best interest. At the end of the day, I believe conservatives and liberals should demand our government to adhere to the Constitution, and libertarians should contest the control of ideas and call it for what it is: the greatest form of tyranny over the mind of man.
Note: I first heard the phrase “intellectual privilege” from Professor Tom W. Bell at Chapman University.