Comment by legutierr | Hacker News Reader

Comment by legutierr | Hacker News Reader

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What I don't understand is the legal basis of Microsoft, a private entity, simply being handed over the property (the domain names) of another private entity. I understand that this is something that was ordered by a court, but under what legal theory was the order issued?

I'm not a lawyer, but I think I've got at least a basic idea of the circumstances under which the government can take someone's property. This doesn't seem to coincide with any of those potential circumstances, especially when the seizure transfers the property to another non-governmental entity.

What's more, where's the due process? No-IP seems to be saying that they didn't even know about the court case until being served with the order. Did they really not have the opportunity to contest this?

EDIT: To summarize some of the documents people have linked to and analyzed below, it looks like Microsoft was granted a temporary restraining order under "Federal Rule of Civil Procedure 65(b)", which allows for such orders to be granted without providing notice as long as certain requirements are met.

Microsoft was required to post a $200,000.00 bond, which is supposed to pay for any damages incurred by No-IP, and No-IP will be granted the ability to contest the order in court on July 10, and maybe earlier. However, it is clear that No-IP knew nothing about even the lawsuit until they lost control of their domains, as this was specifically ordered by the court.

Also, there is no answer as to whether transferring control over domain names from a defendant to a plaintiff is something that courts should be empowered to do as part of a temporary restraining order. I hope a lawyer with some knowledge in this area can chime in to answer that question.

I don't think they had any opportunity to contest.

IT IS FURTHER ORDERED that the Registry Operators must:

...

d. Shall completely refrain from providing any notice or warning to, or communicating in any way with Defendants or Defendants’ representatives and shall refrain from publicizing this Order until this Order is executed in full, except as necessary to propagate the changes ordered herein to all parts of the Domain Name System;

http://www.noticeoflawsuit.com/docs/Second%20Amended%20Order...

I haven't yet found Microsoft's justification for the seizure without notice.

Edit: Looks like Microsoft filed for and got a emergency temporary restraining order against all the defendants including No-IP.

http://www.noticeoflawsuit.com/docs/Second%20Amended%20Order...

Also this is No-IPs response to Cisco's previous accusations. http://www.noip.com/blog/2014/02/12/cisco-malware-report/

They did have lot of chances to contest. Apart from Microsoft's notices, the court sent a notice to No-IP which they didn't respond to. They cleary state that ex-parte decision will be taken if they don't respond. Maybe federal courts don't like it very much if you act like they don't exist.

http://www.noticeoflawsuit.com/docs/Summons%20for%20Vitalwer...

That's not true. On June 19, Microsoft filed the Complaint, Motion to Seal, and Ex Parte TRO Application all at the same time.

The TRO actually says: “...good cause and the interest of justice require that this Order be Granted without prior notice to Defendants, and accordingly, Microsoft is relieved of the duty to provide Defendants with prior notice of Microsoft’s motion.”

It says that because Microsoft wanted it to say that; Microsoft used that language in their proposed TRO for the judge to sign, and the judge apparently agreed.

The Summons has nothing to do with this. The court issued the Summons, but the court doesn't do anything with it. It's the plaintiff's obligation to serve a summons on a defendant, and they have 120 days to do so before the Court would require the plaintiff dismiss the case without prejudice. The plaintiff could serve them the same day, or they could take their time. Corporations with registered agents are much easier to serve than an individual that dodges a process server.

There's often a good chance a defendant will receive a solicitation from an attorney (who searches court records for new cases) to represent them before they actually get served with the summons and complaint. However, nothing would come up in court records in this case because the entire docket is sealed.

There's no way Vitalwerks/No-IP would have known about this, and it sounds like they weren't served until today, after Microsoft's action.

I think it's pretty clear that Microsoft wanted to ensure that nobody, including No-IP, knew about the case until they were able to strike.

I'm not sure they did, the order has this statement (emphasis mine);

8. Microsoft’s request for this emergency ex parte relief is not the result of any lack of diligence on Microsoft’s part, but instead based upon the nature of Defendants’ unlawful conduct. Therefore, in accordance with Federal Rule of Civil Procedure 65(b) and Civil Local Rule 7-5, good cause and the interest of justice require that this Order be Granted without prior notice to Defendants, and accordingly, Microsoft is relieved of the duty to provide Defendants with prior notice of Microsoft’s motion.

I should note my laymans reading is that Microsoft proved exigent circumstances that negated the need for prior notice.

Here is Federal Rule of Civil Procedure 65(b):

http://www.law.cornell.edu/rules/frcp/rule_65

(1) Issuing Without Notice. The court may issue a temporary restraining order without written or oral notice to the adverse party or its attorney only if:

(A) specific facts in an affidavit or a verified complaint clearly show that immediate and irreparable injury, loss, or damage will result to the movant before the adverse party can be heard in opposition; and

(B) the movant's attorney certifies in writing any efforts made to give notice and the reasons why it should not be required.

So, if all of this is considered a "temporary restraining order", then it must be based on these rules, which also seem to provide certain protections to the affected party, including requiring the plaintiff to put up security to reimburse the affected party for any damages they may suffer as a result of the order.

I hope that a lawyer can chime in here and give a decent opinion as to whether this is kosher, and also to answer whether it seems correct to effectively transfer control over property such as domain names through this mechanism.

Later in the order they required Microsoft to post a $200,000 bond. Not sure if that actually covers the potential damages.

Did you read that document that you linked to? There are two things about it that you may want to look at:

- First, it says "Within 21 days after service of this summons on you...you must serve on the plaintiff an answer.."

- Second, it is dated 06/19/2014

21 days from 06/19/2014 is July 10, 2014, a date which is still in the future. Do you have any other evidence that they didn't respond? Because the document you linked to is anything but evidence that they didn't respond.

"Second, it is dated 06/19/2014"

but signed on 6/26.

The plaintiff (Microsoft) is responsible for serving that summons, not the court (The court just issues it). The court didn't even certify the summons until 6/19, and there's no record of service, so we don't know when Microsoft served No-Ip.

That summons also says they have 21 days to respond, which, even if they were served on 6/19, hasn't elapsed yet.

EDIT: mikeryan's post above mine is even more clear - it looks like as soon as they opened the suit, they petitioned for the TRO without notifying NoIP and the court specifically granted them the right to not notify until after the TRO was served.

How do we file the same action against Microsoft? I would like to take their domains for my own purposes, which are obviously far more worthy than what Microsoft is doing with them (I swear).

A good start would be to actually read the legal documents behind the case instead of assuming a lot from someone's comments with cherrypicked facts.

http://www.noticeoflawsuit.com/index.htm

I am still looking through these files, but everything that I have read points to insufficient, or zero notice having been given to the defendants prior to this order. For instance, the complaint itself...

http://www.noticeoflawsuit.com/docs/Revised_Final%20No-IP%20...

...is dated June 19, 2014.

And from the order itself...

http://www.noticeoflawsuit.com/docs/Second%20Amended%20Order...

...we see the following instruction:

"IT IS FURTHER ORDERED, pursuant to Federal Rule of Civil Procedure 65(b) that the Defendants shall appear before this Court on July 10, 2014, at 3:00 p.m., in LV Courtroom 7D to show cause, if there is any, why this Court should not enter a Preliminary Injunction, pending final ruling on the Complaint against the Defendants, enjoining them from the conduct temporarily restrained by the preceding provisions of this Order."

Of course, July 1 is tomorrow.

In this document, Microsoft seems to be requesting that all of this stuff be sealed until it is ready to disclose the existence of the lawsuit to the defendant, presumably after it has completed its seizure the domains:

http://www.noticeoflawsuit.com/docs/Final%20Motion%20to%20Se...

The facts of this seem pretty clear from your link. What I am wondering is if there is any precedence for this, and if this is really considered due process?

You can make it sound like he has no idea what hes talking about, but theres no reason why microsoft is playing FBI.

Practically every instance of malware runs on Microsoft Windows.

If the stated goal is to defeat malware then windowsupdate.microsoft.com should be seized and routed to a non-interactive Windows Uninstaller.

Except all the malware on Android. But who's counting?

https://www.google.com/search?&q=android+malware&ie=UTF-8&oe...

I'm pretty sure virtually none of the spam mails in my spamfilter were sent from a phone. Nor do phones have the bandwidth to carry out DDoS attacks or host phishing sites. Nor do many people do onlinebanking on their phone (though that number is certainly on the rise).

So yes, while malware exists on android, I doubt the total damages caused by it are more than a drop in the bucket when compared to windows malware.

Your original statement was:

>Practically every instance of malware runs on Microsoft Windows.

Even according to Google, about 5 million Android devices are infected with malware. http://bgr.com/2014/06/26/google-on-android-malware-and-secu...

I would suppose that your statements aren't support by fact, but the HN downvotes have got me thinking.

Goole said "Well less than 0.5% have ever had a problem", you quote a blog that turns that into "up to five million have ever had malware" which shows some ignorance of statistics, and then you turn that into "about five million are infected with malware now".

The downvotes are because you're derailing the thread with something that is completely off-topic.

If "5 million" sounds like a large number to you then this may help to put it into perspective; http://en.wikipedia.org/wiki/Botnet#Historical_list_of_botne...

First, were you referring to instances of malware, not membership in botnets. Second, we disagree on the meaning of the phrase "practically every".

Instances of malware must necessarily be >= sizes of botnets.

Android botnets are very valuable because they use mobile network IPs that confuse fraud and login classifiers that use ASN or GeoIP.

Pretty much all botnets target consumer devices and thus have ip addresses that are common for consumer devices. I'm not sure I buy that a mobile IP is worth more than a Comcast one, especially factoring in the available bandwidth.

That is certainly true. But in terms of scale even a claimed 5 million compromised android phones just barely registers while desktop botnets of six times that size are discovered.

The bandwidth constraints imposed by most users draconic data plans and the realities of limited battery life further put a fairly low cap on what a mobile botnet can do in this day and age. (both of which admittedly will hopefully change sooner rather than later...)

Microsoft would respond. No-ip.com didn't respond.

>No-ip.com didn't respond. //

Presumably you have a link where we can see the notarised documentation and proof of delivery of that which was sent to No-IP that they failed to respond to?

A competitor no less!

no-ip and such are a required service for people to host their own "cloud" solutions from their home connections.

Microsoft makes money with their own "cloud" offering. which does not require such services. So by closing down on those services (or using the redirect to collect data) they are making their offering more attractive.

Obligatory car analogy: This is very well like Ford closing down all of Teslas charging stations because someone sold weed on one of them.

Nah, not really. A closer analogy is Ford shutting down all of Tesla's charging stations because the chargers had a nasty habit of attempting to bazooka any Ford cars that drove past.

The competition from no-ip to Microsoft from this is virtually zero. Any serious hoster will have a static IP, or own their own domain.

I think we can improve on that:

    Ford shutting down all of Tesla's charging stations because the original chargers were replaced by mean people with new ones that had a nasty habit of attempting to bazooka any Ford charging station that were withing shooting distance. Those charger were installed by any customers who happened to be within earshot of a sleazy sales guy that had a solution to cure their cars for non-existent problems by smooth talking them about "did you know internet explorer could run 200% faster" even though their car ran firefox or chrome.

more like ford closing all charger stations because a few fords left unlocked got the stereos stolen. (how could i forgot the analogy windows=car left unlocked)

Nope. Now that they have been served they can basically get a hearing immediately and get it lifted though (assuming they have any form of response).

This is nothing new. Here is one a porn company got against a file locker service: http://www.xbiz.com/docs/xbiz/news/150302_oron062212.pdf. They eventually parlayed this into an asset freeze in Hong Kong.

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