One of the really sickening things in the debate over the seizures of domains by the US government without due process and with no regard to prior restraint is the way some pro-copyright lawyers have tried to wave off these rather significant concerns, highlighted by multiple lawyers, by focusing on quoting cases out of context and searching for legal loopholes
to justify the seizures. Of course, if you dig into the actual case law
, you find that the legal loopholes they highlight don't actually apply in this situation.
However, I wanted to step back from that, and take a look at the bigger picture, rather than focus on the legal loopholes that the lawyers are tossing around gleefully.
And from the bigger picture, I can't see how anyone who isn't interested in "the game" of winning a legal argument can possibly justify these seizures from a common sense standpoint. The US is based on certain key principles, and while some can mock those of using phrases like "due process" and "free speech," those aren't joking concepts. They are the underpinnings of a free society, and both are clearly under attack by the crux of these domain seizures.
First, the due process
claim: defenders of the seizures claim that "due process" exists because a magistrate judge rubber stamps an affidavit, no matter how many mistakes there are. Of course, if you look at this from a common sense standpoint, no one thinks that due process includes the government seizing your property and letting you sue them at some later date (months later) to get it back. Supporters will point to the history of government seizures, leaving out (conveniently!) the intent
of such seizures. It's always
been about seizing evidence that might otherwise disappear
. Yes, over the years some law enforcement folks have stretched this, but that doesn't mean it makes sense to abuse it in this manner.
The key point here is that there is no justifiable reason
why these domains had to be seized without first hearing from the domain holders. None. No one has offered up a justification for seizing them pre-hearing at all. And holding a hearing would allow the government to avoid colossal screw-ups like relying on flatly incorrect evidence from the RIAA
or taking down 84,000 legitimate sites
and accusing them of being involved in child porn.
This isn't a minor issue. People in the US have been taught that we're innocent until proven guilty. Would it really have made that big of a difference for the government to actually hold a trial before seizing the domain? The answer is no. I mean, it would have meant that the government had to actually make a real case, rather than use questionable evidence, but that's why
we have the concept of due process. It's not supposed to be easy for the government to take property or lock people up. That's kind of a key point in a free society.
On the free speech
point, the First Amendment is pretty clear that Congress shall make no law
abridging the freedom of speech. Of course, over the years, the courts have chipped away at this here and there, but when the government is seizing speech
or even tools that are key to use in speech, most people recognize that this should involve a high level of scrutiny to avoid the obvious opportunity for abuse.
We've already seen governments in other countries use questionable copyright claims to stifle the speech
of critics. And it's not difficult to see how this could happen in the US as well -- especially given the recent domain seizures. Considering the vast number of perfectly legal sites seized, how hard would it be for political operatives to target critical sites using a similar "copyright" claim? Not hard at all. And that's why we protect our First Amendment rights quite strongly.
In fact, I'm troubled by the claims that seizing speech is fine because it's "copyright infringement." That ignores the fact that the speech we're concerned about isn't infringing speech at all, but it was also taken down due to these seizures. And, as in the due process discussion, there's simply no justifiable reason
for why the government could not have waited until a court actually determined what content was infringing (if anything) and targeted any takedown or seizure to that content.
No one tossing out these (generally incorrect) legal loophole arguments seems willing to address either issue. They hide behind misreadings of case law, but can't defend the seizures to the man in the street who is extremely worried about the government blatantly censoring websites with no trial and no due process, while making frequent mistakes undermining the entire claims of the lawsuits. Perhaps there is an actual common sense justification for seizing domains without a trial first, but we haven't seen anything other than misquoting caselaw. So, for those who continue to brush off the due process and free speech concerns, can you explain an actual common sense reason why there couldn't have been an actual trial first?