Rep Lofgren - Thank you for coming to this forum and asking for comments on this important issue.
A website is a forum for expression, both by the operator and potentially the users as well, so any takedown has first amendment implications. It is important to consider the first amendment rights of the website users as well as the website operators. In general, websites should not be taken down unless the operators (and not just a user) of the website are likely guilty of violating the law. In cases where websites have both legitimate and illegitimate uses and users, efforts should be taken to minimize the impact of seizures to users who are actually violating the law. It may not make sense to take the entire site down in such a case - in fact I think that sort of action should be an absolute last resort.
Approval from a court should be required before any site is taken down. (Earlier this year a startup called JotForm had its domain pulled by the United States Secret Service for no apparent reason and AFAIK with no judicial process whatsoever - this shouldn't be happening.)
Takedowns should only take place if there is no other way to stop the criminal activity on the site. A standard similar to that for a preliminary injunction might be appropriate in the case that a website needs to be taken down - law enforcement should demonstrate that a criminal claim against the website operators is likely to succeed on the merits based on evidence already assembled, the harm associated with keeping the website up is greater than that associated with taking it down, and there is no reasonable alternative that would have a more minimal impact. Website operators should have speedy access to a forum in which to contest any of the facts that led to the approval for seizure (including the assertion that there is no alternative to total seizure of the site). Reportedly Dajaz1 spent a year trying to contest the facts of their seizure - that sort of delay is far too long.
As you can see from the comments on this forum, there are a variety of related intellectual property issues that Reddit users are concerned about. A theme that appears in many of these posts is a concern about the lack of effective deterrents for fraudulent or inappropriate DMCA takedown notifications. Although the DMCA allows for misrepresentation claims, AFAIK only 3 have been made during the existence of the statue. Certainly, the number of inappropriate DMCA takedowns is vastly larger, leading to the perception that this deterrence tool is not working.
I think this community is broadly concerned about the use of inappropriate copyright claims as a censorship mechanism, regardless of whether or not they involve the DMCA's takedown provisions. Many of the concerns about the DMCA relate to the way that the anti-circumvention provisions threaten computer security researchers, reverse engineers, and other technical professionals whenever they do something that large tech companies dislike - regardless of whether they've done something results in actual copyright infringement. The EFF published a paper titled Unintended Consequences: Twelve Years Under the DMCA which documents many examples. Some of those examples involve activities that are prohibited by the law. Others involve misrepresentations. It is difficult in our legal system for an individual citizen to contest a legal misrepresentation being made by a large organization due to the expense associated with defending one's self in court.
Thank you for your time.
