Yesterday, Mozilla’s Harvey Anderson posted on his blog that the foundation was resisting joining Immigration and Customs Enforcement (ICE) in a game of copyright Whac-a-Mole. Mozilla had received a request from ICE to stop offering a Firefox add-on that circumvents the agency’s recent domain seizures. The add-on, pointedly named MafiaaFire (it “melts ICE”), automatically redirects requests for some of the seized domains to the sites’ widely known new locations. Mozilla did not comply with the request, instead responding with 11 questions for ICE, including whether ICE has contacted the creator of the add-on directly, and what legal obligation Mozilla had (if any) to remove the add-on. Anderson’s blog post points out the dangers of putting informal law-enforcement pressure on intermediaries to block unwanted online content:
One of the fundamental issues here is under what conditions do intermediaries accede to government requests that have a censorship effect and which may threaten the open Internet. . . . Longterm, the challenge is to find better mechanisms that provide both real due process and transparency without infringing upon developer and user freedoms traditionally associated with the Internet.
We couldn’t have said it better ourselves. If indeed ICE’s request was made without legal backing, and was simply an informal request to Mozilla to take down the add-on, it was an inappropriate use of law-enforcement authority. Just as CDT argues that other governments must follow the rule of law when it comes to Internet cutoff and takedown demands, US law enforcement must also respect due process. If there is a valid legal basis that requires Mozilla to take something down, law enforcement should present its case and get a court order. Unless and until that happens, we applaud Mozilla for resisting the request and demanding proper process. Indeed, Mozilla’s response is in line with the principles articulated by the Global Network Initiative for company responses to extralegal government demands.
ICE is understandably frustrated that a tool exists with the express purpose of getting around the blockage it expected its domain-name seizures to cause. But seizing a domain does not remove a site from the Internet, and any expectation that circumvention can be bullied away is not reasonable. The very existence of the MafiaaFire add-on, and ICE’s attention to it, only underscore how easy it is to circumvent domain seizures, and the ultimate futility of seizure as an enforcement tactic. Many of the sites targeted for seizure are accessible at new domains and are relatively easy for users to locate; MafiaaFire simply automates the process of finding them. So with the domains seized, ICE went after one of the workarounds—or, more accurately, an intermediary hosting one of the workarounds. And Mozilla is not even an exclusive host, since the MafiaaFire add-on is available from other sources, like its own website. That raises the question of what law enforcement will feel the need to try to target next: Other websites where MafiaaFire is available? Other add-ons that will inevitably spring up? Blog posts like this one that point out how easy the seizures are to circumvent? The hypothetical add-on that helps users find alternate platforms for circumvention add-ons that have been taken down elsewhere? Any site than mentions a targeted site’s new domain? Search results for queries related to seized domains?
This endless parade of intermediaries – each with a more attenuated relationship to the infringing content – illustrates how ineffective approaches to IP enforcement focused on Internet intermediaries are likely to be. The most effective method of combating infringement online is to go after the problem at its source, by targeting enforcement actions on the infringers themselves. That is the lesson ICE needs to learn, and Mozilla’s resistance could spur a step in the right direction.