As The Feds Seize Domains, More Attention Paid To How Law Enforcement Regularly Abuses Asset Seizures

from the this-is-not-due-process dept

Given our serious concerns over the legality of Homeland Security's domain name seizures, one thing we keep hearing from supporters of the effort is that asset seizures are "nothing new" and happen all of the time. We've already discussed how that's not exactly true -- and how pre-trial seizures are supposed to be focused on situations where evidence might get destroyed. But it's even worse than that. It appears that law enforcement has a long, and rather dubious, history of greatly abusing the ability to seize property for their own benefit.

Ryan Radia pointed us to a detailed report from earlier this year, written by the Institute for Justice, about how the civil asset forfeiture process is regularly abused by police (pdf). And along those lines, Radley Balko has a disturbing story out of Indiana concerning massive abuses of the asset forfeiture process. Basically, law enforcement in Indiana had been abusing the forfeiture rules for their own benefit. As Balko noted in an earlier article, the "forfeiture racket" is basically a "license to steal", as law enforcement can find all sorts of reasons to seize private assets -- even without trying their owners for any crime -- and then profiting off the sale of those items.

In Indiana, the law had been changed so that, officially, any proceeds from forfeiture would go to the state's public schools, rather than directly to law enforcement. However, as Balko reports, Indiana prosecutors have found loopholes, which they regularly exploit to get around the rules:
One popular way Indiana prosecutors have avoided contributing to the school fund is to contract out civil forfeiture cases to private attorneys, who get to keep a quarter to a third of what they win in court. If there are incentive problems with letting police departments and district attorneys' offices keep forfeiture proceeds, those problems are magnified several times by allowing private attorneys to get paid directly from the forfeiture cases they bring on behalf of local governments. Forfeiture experts I've spoken with say the practice almost certainly violates the Constitution's Due Process Clause, since the people making decisions about these cases get a direct financial benefit from those decisions.
Note that, in some ways, this mimics what Homeland Security did with the domain name seizures. As we noted, Homeland Security actually contracted out to a private company to handle the domain name seizures. It's not clear, however, if they directly benefit from each seizure but this does seem like a serious question.
Another loophole in the law allows prosecutors to deduct from forfeiture proceeds the law enforcement costs associated with obtaining them. County prosecutors and police departments exploit this provision by wildly exaggerating the costs of their investigations or interpreting the law in ridiculously broad ways. The Star reported, for example, that officials in Marion County "have a broader--and more lucrative--interpretation of law enforcement costs. They argue that the phrase simply means the cost of enforcing the law in Marion County, and thereby justify holding on to every dollar of the nearly $1.6 million the county received from state forfeiture cases in 2009."
I'm curious if those supporting the whole forfeiture concept as being "perfectly normal" care to comment on these sorts of things...


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    :Lobo Santo (profile), Dec 7th, 2010 @ 9:16am

    I'll take a whack at it...

    "I'm curious if those supporting the whole forfeiture concept as being "perfectly normal" care to comment on these sorts of things..."
    (Though I'm not a supporter of these, I'll take at whack at the comment thing.)

    Ah-hem:
    We've been anally raping you without lube for YEARS and now you choose to complain? Like really?? What, did you just now notice? Isn't that like a rape victim marrying her rapist and then complaining of having been raped 50 years after the fact? I'm sure there's some sort of statute of limitations on this sort of thing. I think it's 20 years on grand-theft, and as we've been doing this continually for at least 30 years, you've no legal right to complain.

    Signed,
    Your Government Representatives.

     

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    Anonymous Coward, Dec 7th, 2010 @ 9:33am

    "Seizures" and "forfeitures" are separate and distinct issues.

    Copyhype has a good summary of the distinction that may help persons better understand the issues.

     

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    Darryl, Dec 7th, 2010 @ 9:56am

    Its not physical so it has no value according to Mike, so they cannot profit from it.

    None of that applies to domain name seizures, as the police do not take anything physical (as you keep telling us), and they do not profit from the domain name they seize.

    Yes, it would be different if they seized a pile of DVD's and gave them away to friends and family.

    Or if they seized drugs, and took them or sold them for profit.. but to seiz a domain name gains them nothing, they gain no physical property of value.. and they are required by law to uphold the law, and if the law says seize these things, then so be it..

    So if they discover a drug lab in your area, they will seize the drugs, and they will seize the equipment, and the raw materials.

    Its what they do, its what we elected our/your government for, and why we pay taxes, to ensure our rights are upheld.

    Everyone rights, including yours, and not only you, but everyone else as well.. So if you have a right to own a car, the law will uphold that right, if you have a right to copy a work, the law will uphold that right too.

    If you are doing something you do not have a right to do, the law, will take away your ability to do that thing.

     

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      RD, Dec 7th, 2010 @ 10:00am

      Re: Its not physical so it has no value according to Mike, so they cannot profit from it.

      "Everyone rights, including yours, and not only you, but everyone else as well.. So if you have a right to own a car, the law will uphold that right, if you have a right to copy a work, the law will uphold that right too. "

      Except, you foaming at the mouth raving lunatic IDIOT, you cant "copy" a domain like you can a CD or movie, or other digital good. A domain is a singular, specific construct, there is ONLY ONE of each. As such, even though its in the digital realm, it most certainly CAN be seized and deprive the owner of its use. You cant just put another one out (though it is possible to "Work around" the problem, sort of, but its not the same thing).

      Your analogies are the absolute worst, as you obviously have no grasp on things like copyright law, infringement vs theft, the role of govt, freedoms, our constitution, or even being a decent human being.

       

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      DV Henkel-Wallace (profile), Dec 7th, 2010 @ 10:13am

      Re: Its not physical so it has no value according to Mike, so they cannot profit from it.

      So if they discover a drug lab in your area, they will seize the drugs, and they will seize the equipment, and the raw materials.

      Its what they do, its what we elected our/your government for, and why we pay taxes, to ensure our rights are upheld.
      Darryl, the point is that these seizures aren't controlled by a trial or even subpoena. Clearly if the cops catch you breaking into a car they can confiscate the crowbar, and if (unlikely in my example, but still) you are proven innocent you get your crowbar back.

      These civil seizures aren't connected with any criminal charges; worse the authorities get to profit (as an organization, generally, although Mike describes an exception even to that) from the proceeds.

      Domain names aren't physical but they are an excludable good so are the logical equivalent of a physical asset.

      Yes, the government is elected, and taxes are paid to help keep order and safety. And I am sure there are bad guys that the cops clearly know about but can't catch in flagrante delecto. But there is a reason we developed due process, and short-circuiting that is a recipe for exploitation.

       

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      Gwiz (profile), Dec 7th, 2010 @ 11:04am

      Re: Its not physical so it has no value according to Mike, so they cannot profit from it.

      Darryl, your village called, they seem to have lost their idiot.

       

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        Anonymous Coward, Sep 4th, 2011 @ 8:54am

        Re: Re: Its not physical so it has no value according to Mike, so they cannot profit from it.

        Lol, I kept reading "your vintage called" and it really wasn't making any sense how it could be calling and why a vintage would have an idiot. Suddenly I seen it said village, not vintage, and ut was like my eyes were suddenly opened.

         

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      Killer_Tofu (profile), Dec 7th, 2010 @ 11:40am

      Re: Its not physical so it has no value according to Mike, so they cannot profit from it.

      I will say this as simply as I can. There is a large difference between physical vs digital and finite vs infinite.
      Just go ahead on over to dictionary.com or any other site and learn what most of us learned in elementary school. We have explained it too many times here for me to care to get any further into it. I know you will ignore this anyways because your income is based on your ignorance probably.

       

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      Ron Rezendes (profile), Dec 7th, 2010 @ 12:16pm

      Re: Its not physical so it has no value according to Mike, so they cannot profit from it.

      "If you are doing something you do not have a right to do, the law, will take away your ability to do that thing."

      Ahem, first there is a little roadblock called DUE PROCESS that is SUPPOSED to occur. As it has been pointed out several times, just making copies of the website would be sufficient enough to use for evidence in the course of DUE PROCESS. So, while you vigorously defend some specific rights for the content industries you completely ignore the rights of the individuals while you blatantly disregard the entire DUE PROCESS portion of law enforcement. Fascist much?

       

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      nasch (profile), Dec 7th, 2010 @ 12:46pm

      Re: Its not physical so it has no value according to Mike, so they cannot profit from it.

      Keep in mind this is Darryl, not darryl. Note the appropriate use of capital letters, and the tendency to almost make sense*. Neither of these traits are consistent with darryl's style.

      * This isn't a high quality post, but you have to admit this is a lot more coherent than darryl's tripe

       

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        Gwiz (profile), Dec 7th, 2010 @ 1:34pm

        Re: Re: Its not physical so it has no value according to Mike, so they cannot profit from it.

        Ooof...perhaps you are correct nasch. I see darryl at the top of a post and I tend to skim it quickly.

        Darryl, I apologize sincerely for my above post. It was a build up from a whole bunch of darryl's posts lately.

         

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          Gwiz (profile), Dec 7th, 2010 @ 1:54pm

          Re: Re: Re: Its not physical so it has no value according to Mike, so they cannot profit from it.

          Well now...looking back at older comments I'm not so sure new Darryl isn't old Darryl. Maybe just Darryl in a more lucid moment.

          Let me put it this way. If you are a new Darryl then my apology stands, otherwise my apology is retracted. That should cover my bases.

           

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            nasch (profile), Dec 7th, 2010 @ 3:14pm

            Re: Re: Re: Re: Its not physical so it has no value according to Mike, so they cannot profit from it.

            I'm not sure they're different people, but they definitely seem like different characters, at least.

             

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        Mike Masnick (profile), Dec 7th, 2010 @ 3:38pm

        Re: Re: Its not physical so it has no value according to Mike, so they cannot profit from it.

        Keep in mind this is Darryl, not darryl. Note the appropriate use of capital letters, and the tendency to almost make sense*. Neither of these traits are consistent with darryl's style.

        It's the same guy.

         

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          nasch (profile), Dec 7th, 2010 @ 8:16pm

          Re: Re: Re: Its not physical so it has no value according to Mike, so they cannot profit from it.

          It's interesting in a stupid way that he would have different characters with almost the same name and a different style. Maybe he's trying to switch to Darryl and leave darryl behind, which would be a step in the right direction.

           

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    TDR, Dec 7th, 2010 @ 10:05am

    Just ask Darryl to prove he isn't a corporate sock-puppet paid to shill. That should get a response.

     

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      The Mighty Buzzard (profile), Dec 7th, 2010 @ 4:56pm

      Re:

      Meaningless request. Prove you aren't a very short perl script. It's close enough to impossible to prove most negatives that requests to do so are effectively foolish.

       

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    Anonymous Coward, Dec 7th, 2010 @ 10:06am

    Some 20 years back I was living in a different US state with very high out of state vacation visitors.
    Now you can get the story or the facts but not both.

    The local sheriff depart was in need of funds. When are they not? Parolees would be let out of county lockup for the express purpose of assaulting tourist cars with the purpose of depositing drug residue in them by smoking dope and scattering the remains around. Then county sheriffs and local cops would do a random spot check of hotel parking lots. There was a almost 100% forfeiture of such cars especially if the vacationers were not very elderly. The political consequences of seizing cars from elderly visitors was not worth the consequences since there was a infinite supply of ones ones by the 20 to 30 year age group.

     

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    DV Henkel-Wallace (profile), Dec 7th, 2010 @ 10:14am

    Any documented cases of the opposite?

    If I can profit from dealing with one sort of crime, what about the incentive not to bother with crimes that don't offer a profit for the police?

     

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    ignorant_s (profile), Dec 7th, 2010 @ 10:16am

    Lame

    I am shocked that the State Bar would allow such a practice. It seems very unethical to have a private attorney (subcontracting for a public entity) benefit in such a way as to be able to keep a portion of "what they win in court". Lawyers have rules of professional conduct to follow, and those rules likely address the issue of an attorney receiving a financial benefit from a client other than the standard fees for working upon the case. Someone should raise the issue with the state bar.

    As far as the seizure of intangible assets such as domain names, the fact that the asset is not physical does not make it valueless, however its value is unquestionably difficult to determine. The legal question is whether the seizure was constitutionality proper and if not, what is just compensation? If the government can prove that the domain name was being used to promote or engage in illegal activity, well then, they can take it (despite its intangibility) and keep it and do whatever they want with it. If one challenges the seizure, and wins, well they are supposed to give it back or compensate you for it. Problem is, most people can't afford to challenge such seizures and if they win, they government will likely argue the domain name has little or no value, thus no damages.

     

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      The Mighty Buzzard (profile), Dec 7th, 2010 @ 5:02pm

      Re: Lame

      I must be overly tired. I can't tell if that first paragraph was sarcasm or if you have an extremely uncommon faith in ethical standards for lawyers that are written and adjudicated by more lawyers.

       

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    takeaswag, Dec 7th, 2010 @ 10:28am

    So if they discover a drug lab in your area, they will seize the drugs, and they will seize the equipment, and the raw materials.

    and they will seize the housse they found it in, and they will seize any money they find there whenther it is related or not, and they wil seize any vehicles and/or boats they find there, and they will seize anything in any safe deposit boxes that any of the people there and the owner of the house happen to have and they will seize the bank accounts off anyone there and the owner of the house.

    THAT is what the problem is. If they only seized what related it would not be (as much???) a problem. They don not. They take until you and everyone around you are bled to death.

    As for the sites, seize the offending files. Why seize the domain?

     

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      Rich, Dec 7th, 2010 @ 11:14am

      Re:

      How do you "seize" computer files?

       

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        Freak, Dec 7th, 2010 @ 11:24am

        Re: Re:

        The point is to stop them from being destroyed, so copy them instead of 'seizing' them. Because it is 'copyright infringement', that probably means, (not in all cases, ie: code), that the file is publicly available, so that won't be breaking any laws, no matter how you do it.


        But you can still 'seize' a file in the traditional sense either by taking the physical media it is stored on, or making a copy and destroying the original.

         

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        The Mighty Buzzard (profile), Dec 7th, 2010 @ 5:05pm

        Re: Re:

        Shotgun to the hard drive on the server? May or may not fit the definition you're looking for but it'd certainly be fun.

         

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      ignorant_s, Dec 7th, 2010 @ 12:26pm

      Re:

      When law enforcement does a search of property based on a warrant, the police should only seize what is listed in the warrant. Its going to be stuff like money, drugs, or anything possibly related to the crime...evidence. Thus, they have wide latitude, but there are limits. They can't seize your house or your teddy bear or your "illegal" site's domain name, without somehow linking it to some illegal activity for which the search is based upon.

      And yes, unfortunately, the burden shifts to the individual whose assets have been seized to prove the police or whatever law enforcement agency, either did not have a constitutional basis for the search, or seized assets outside the scope of the warrant.

      Yes, it sucks, but they do have to have some paperwork. We do not (yet) live in a police state without the court system to balance the power. Injustices, unfortunately happen all the time in our legal system. At least two innocent men in Texas have been executed. I guess the question remains, how do we fix it?

       

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    Anonymous Coward, Dec 7th, 2010 @ 10:50am

    The big problem I see with all this is that once seized, the burden of proof shifts to the person who had their property seized.

    This is nothing new at all, I have watched shows (20-20 or something) that talked about this down in Texas.

    Funny thing is that police will seize property and then not file charges unless the person wants their property back. That is really bogus, of course, how many times have we watched someone pay a million dollar fine to the SEC without admitting wrongdoing. This sounds pretty much the same.

     

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    Anonymous Coward, Dec 7th, 2010 @ 10:52am

    "As for the sites, seize the offending files. Why seize the domain?"

    As a reader of Techdirt, you should know that trying to seize infinite goods like a file would be a waste of time.

     

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    Roland, Dec 7th, 2010 @ 11:00am

    welcome to the war on drugs

    Forfeiture (for whatever reason) Endangers American Rights:
    fear.org. The stories told there are unbelievable, but true. Welcome to the war on some drugs. It was never about making sense. The Russian govt. is run by a bunch of gangsters. So is the American govt. Been that way since Nixon(maybe longer).

     

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      Anonymous Coward, Dec 7th, 2010 @ 12:23pm

      Re: welcome to the war on drugs

      Actually, the US Government have been a bunch of crooks eversince it was first founded. To make things more sense, we live in a capitalist society where the Government reprents the will of the wealthy few not everyone.

       

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        The Mighty Buzzard (profile), Dec 7th, 2010 @ 5:13pm

        Re: Re: welcome to the war on drugs

        That's not capitalism, twit. Capitalism's fundamental principle is competition is good. Anything that has nothing to do with that or goes directly against that is not capitalism, period.

         

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          Anonymous Coward, Dec 9th, 2010 @ 6:51am

          Re: Re: Re: welcome to the war on drugs

          It's still capitalism, you're just not recognizing where the competition is happening.

          Corporations are competing with each other to corrupt the laws in their favor.

           

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          Anonymous Coward, Dec 9th, 2010 @ 6:51am

          Re: Re: Re: welcome to the war on drugs

          It's still capitalism, you're just not recognizing where the competition is happening.

          Corporations are competing with each other to corrupt the laws in their favor.

           

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          Phil, Dec 11th, 2010 @ 11:54am

          Re: Re: Re: welcome to the war on drugs

          This is a late comment, but I have to make it anyway...
          You are right. Competition is one of the two key components of a capitalist economy, but unfortunately, corporate entities in the US and Europe much prefer to focus on the other key component of capitalism, private enterprise. Meanwhile, they seek to not only ignore competition, but promote its opposite... Monopoly!

           

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    MrWilson, Dec 7th, 2010 @ 11:09am

    Since we're talking about over-reaching, what about the perception of "intellectual property" as being the same as real property? How long til the government seizes and resells trademarks and copyrights and patents?

     

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    average_joe (profile), Dec 7th, 2010 @ 11:32am

    I'm curious if those supporting the whole forfeiture concept as being "perfectly normal" care to comment on these sorts of things...

    I don't know if I would say it's "perfectly normal" but I do support these seizures/forfeitures, so I'll answer... We just don't have enough information to say that there's anything wrong going on here. You bring up police departments that seize assets so they can resell them for a profit. I don't think these domain names are going to be resold, so I don't see your point. As far as the feds exaggerating the costs of these seizures to pad their own pockets, there is no proof of that in these cases that I'm aware of, so I don't see the point there either. If you had proof, I'm sure you would have posted it. Otherwise, I'm going to call it "puffery" on your part, but only since you asked. (That's also a new word in my vocabulary, and I'm looking for places to use it.)

     

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      Mike Masnick (profile), Dec 7th, 2010 @ 11:45am

      Re:

      I don't know if I would say it's "perfectly normal" but I do support these seizures/forfeitures, so I'll answer... We just don't have enough information to say that there's anything wrong going on here

      Really? Seizing full domain names of sites including blogs with plenty of non-infringing content without a trial doesn't strike you as the least bit troubling?

      You bring up police departments that seize assets so they can resell them for a profit. I don't think these domain names are going to be resold, so I don't see your point.

      Really? I brought it up because it shows one way in which these processes are of dubious legality and regularly abused. I never suggested, nor implied, that the feds would then sell the domains.

      As far as the feds exaggerating the costs of these seizures to pad their own pockets, there is no proof of that in these cases that I'm aware of, so I don't see the point there either. If you had proof, I'm sure you would have posted it.

      Again, the point was (as, um, was CLEARLY STATED in the post) to show that this process is regularly abused. It was not to say that this is exactly what happened in this case, just to raise questions about the entire seizure/forfeiture process.

      Otherwise, I'm going to call it "puffery" on your part, but only since you asked. (That's also a new word in my vocabulary, and I'm looking for places to use it.)

      You should read Techdirt more often.

      http://www.techdirt.com/articles/20100211/0133368126.shtml

       

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        average_joe (profile), Dec 7th, 2010 @ 11:57am

        Re: Re:

        Really? Seizing full domain names of sites including blogs with plenty of non-infringing content without a trial doesn't strike you as the least bit troubling?

        Well, that's not fair. We were talking about whether those doing the seizing were motivated by illicit gains for them and their minions. You've changed the subject here.

        Really? I brought it up because it shows one way in which these processes are of dubious legality and regularly abused. I never suggested, nor implied, that the feds would then sell the domains.

        Show me how THIS process is being abused, and I'll get my pitchfork.

        Again, the point was (as, um, was CLEARLY STATED in the post) to show that this process is regularly abused. It was not to say that this is exactly what happened in this case, just to raise questions about the entire seizure/forfeiture process.

        Sure, other people MAY abuse a similar process in other cases. But, meh. Show me such abuse in this case, and I'll even sharpen my pitchfork first. :)

        You should read Techdirt more often.

        http://www.techdirt.com/articles/20100211/0133368126.shtml


        I think I read techdirt too much. LOL! "Puffery" is a great word, though. :)

         

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          Jesse, Dec 7th, 2010 @ 12:21pm

          Re: Re: Re:

          Why do you need "abuse" to get upset about domain names being seized without due process? If the government seizes your car without due process, but they don't profit from it (i.e. "abuse"), is that to say you wouldn't have a problem with that?

          Side note: I think in Australia "puff" and/or "puffta" is used as a slur for a person of homosexual orientation.

           

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            nasch (profile), Dec 7th, 2010 @ 2:38pm

            Re: Re: Re: Re:

            When Top Gear (UK) was driving across the Kalahari, Jeremy and James wrote "All adders are puffs" on Richard's car, so I think it's the UK too.

             

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            average_joe (profile), Dec 7th, 2010 @ 2:40pm

            Re: Re: Re: Re:

            Why do you need "abuse" to get upset about domain names being seized without due process? If the government seizes your car without due process, but they don't profit from it (i.e. "abuse"), is that to say you wouldn't have a problem with that?

            I thought this thread was about people abusing their power to seize property for personal or departmental gain, which is really a different issue than whether or not due process was violated with these current seizures. If due process was indeed violated, I'm not at all happy about it. I'm just not convinced that it was.

            Side note: I think in Australia "puff" and/or "puffta" is used as a slur for a person of homosexual orientation.

            I just asked a friend of mine who is gay and who has lived in both England and Australia about that, and she said that it's a word used in England, not Australia. She said it's pronounced "poof" but she wasn't sure how to spell it.

             

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      Ron Rezendes (profile), Dec 7th, 2010 @ 12:22pm

      Really?

      "We just don't have enough information to say that there's anything wrong going on here."

      If that is the case, then an investigation MAY be called for and seizures of entire domains is completely uncalled for and would likely be a violation of the law itself. Making copies of the website would be sufficient enough to use for evidence in the course of DUE PROCESS.

      See, the rules are there but you don't get to selectively apply them to suit your needs. Due process must take place or the enforcement agency ends up being the offender.

      Silly rabbit!

       

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    Anonymous Coward, Dec 7th, 2010 @ 12:37pm

    Corruption is a myth so stop your crying about "abuses".

     

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    Rekrul, Dec 8th, 2010 @ 4:39am

    But it's even worse than that. It appears that law enforcement has a long, and rather dubious, history of greatly abusing the ability to seize property for their own benefit.

    Yes, this has been going on for years. There are hundreds of horror stories about police seizing money, cars even people's homes, all without any evidence whatsoever and without any charges ever being filed.

    Consider this; A large portion of the paper money in the US (probably the rest of the world also) has come into contact with drugs at some point. Dogs can smell this drug residue. If you're stopped by the police and have a large amount of cash on you, they can and often will seize it, claiming it to be drug-related (thanks to the drug residue). Since going to court to get it back would probably cost more in lawyers fees than the cash is worth, you can basically kiss it goodbye. And from what I've read, trying to get seized property back is next to impossible since the rules are reversed and you have to prove that the property wasn't related to a crime.

     

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