The Canadian gambling site [name had to be removed] thought it had the whole thing figured out. If you stay in Canada, use Canadian servers, block anyone inside U.S. territory from using the site and make sure that you don’t use any American vendors for anything — stay completely away from anything having to do with the jurisdiction of the United States — you can be free to operate your online business.
Many sites have assumed this. More and more are doing this. [The site] was doing just fine, with hundreds of employees in Canada and Costa Rica. It had just signed a three-year sponsorship deal with the Canadian Football League, according to Michael Geist, whose column alerted me to this remarkable case. All was going well.
If you go to the site right now, you will find that it is a among the growing number of seized domains. Instead of a free gaming site, you will see instead what is quickly becoming known as the Mark of the Beast. It is the Homeland Security seizure notice.
How could this have happened? Officials were somehow able to get the warrant and lean on VeriSign to redirect the URL. The homeland is safe! Whether this is legal is another question. There have been many legal challenges to U.S. takedowns recently, among them the Megaupload case from early 2012, a case that may eventually be decided in favor of the defendant.
Regardless, the chilling effect is real and lasting. Governments are going to be less likely in the future to permit any gaming sites, and large institutions such as the Canadian Football League are less likely to sign deals with any enterprise the U.S. government doesn’t like.
What’s absolutely bizarre is how the U.S. government can presume what is effectively a global jurisdiction over the global Internet. It can use its weapons of mass destruction to smash even the most-developed and popular institutions — developed entirely by a voluntary meeting of minds between producers and consumers — and make them go away with one court order.
This case shows that it is no longer protection enough to put up a wall between U.S. jurisdiction and the website. In any case, it has been obvious enough for some months that the excuse that the enforcers have used was a thin excuse, in any case. No, that excuse seems to be gone, and just as with U.S. military policy, any server located anywhere in the world is fair game.
This whole nationalist approach runs completely contrary to the international ethos of the digital age. Given the ubiquity of instantaneous and universal communication, where you live is less and less important. Consumers and producers can be in all corners of the world and still cooperate. But look what is happening: Dynamic companies are already setting up shop outside the U.S. just to evade what Ronald Reagan called the “evil empire” (except, of course, he was not talking about the U.S.).
This takedown notice seems to indicate that the government isn’t satisfied merely with the digital age outside our borders. It is signaling the desire to crush it wherever it may appear.
And just like the Megaupload case earlier this year, this case is also a rebuke to those who worked so hard to beat back the SOPA legislation that Congress had been considering. A major concern of the opponents of this legislation was that it would dramatically expand the geographic jurisdiction of the U.S. If any dot-com, dot-net or dot-org site were accused of hosting pirated copy, it could be instantly shut down wherever it happened to reside.
Well, once again, we discover that no such legislation is necessary. The government already has that power. The excuses vary. It could be a copyright case. It could be a patent infringement case. Or it could be that the site is said to be doing something, like gambling, that the U.S. wants to see monopolized by some other market player. The rationale can be anything or nothing.
Under these conditions, the whole Internet is threatened every day. You might say that it doesn’t matter, that you don’t host pirated material, you don’t tolerate illicit porn and you will have nothing to do with gamblers. Surely, you are safe. The truth is that no one is safe when the government has this much power.
First, they came for the pirates, but I was not a pirate…
In the 1985 film Brazil, the government would routinely drop through the roofs of citizens and throw people in body bags and take them away. If it turned out that a mistake was made, a bureaucrat would show up with a receipt and express regret. That’s it. It’s been this way in U.S. foreign policy, with the military killing innocent people and then reluctantly admitting that mistakes might have been made.
Internet enforcement seems to be going the same direction. A body bag is thrown over any website, and the details are worked out later. The business dies and hundreds lose their jobs and files. If mistakes were made, here’s your receipt.