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More Reasons Why Homeland Security Seizing Domain Names Is Unconstitutional

Free Speech

from the keep-up dept

Mon, Mar 14th 2011 10:57am -

We’ve raised a number of reasons as to why the federal government’s domain name seizures (via Homeland Security’s Immigrations and Customs Enforcement group) are almost certainly not Constitutional. And while we’ve run these arguments by a number of well respected Constitutional lawyers who are extremely interested in these issues (and may be getting involved in various ways), some in our comments have insisted that our points could be ignored because we are not lawyers. And while I’ve asked some of the lawyers I regularly speak to if they would write blog posts commenting on these issues, many are quite busy trying to actually do something about these issues, and that seems a bit more important.

So it’s nice to see some lawyers jumping into the fray. Practicing attorney David Makarewicz has written up an explanation of 5 reasons why the domain seizures are likely to be unconstitutional. It’s really quite a well-balanced piece, detailing arguments on both sides, before coming down clearly on the side of why these seizures violate the Constitution in multiple ways. You can head over to that link to read the details, but the short version is as follows:

  1. These seizures violate the due process clause of the Fifth Amendment. There are certainly arguments here, but Makarewicz breaks down in which areas and for what reasons seizures without a prior hearing are allowed, and explains why those rules should not apply here.
  2. The prior restraint argument. Seizing speech without a hearing violates the First Amendment. Here Makarewicz highlights why the arguments that say this is not prior restraint don’t hold much water, and notes that, if allowed, such a ruling will almost certainly be abused for the purpose of political censorship.
  3. There was no reason for the seizures without a hearing first. As we’ve pointed out in the past, seizures are generally allowed to preserve evidence. That doesn’t apply here, which makes the seizures that much more questionable.
  4. The high risk of wrongful seizure. Obviously, the 84,000 websites seized in the mooo.com case make that clear. While he notes that the government doesn’t always have to be right, the Constitution “does require the Government to institute sufficient procedures that reasonably protect a person?s freedom and property from a wrongful taking.” Here, it’s clearly failed.
  5. Finally, there is no immediate way for site owners to reclaim their domain. He notes that when there are exceptions to the First and Fifth Amendments, they’re generally allowed, if there’s immediate recourse. Here there was not.

It’s a good read, and by a real lawyer. So I do wonder if our regular critics will similarly brush aside the concerns as not being worthy of consideration.

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Comments on “More Reasons Why Homeland Security Seizing Domain Names Is Unconstitutional”

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164 Comments
Ryan (profile) says:

What about MX records

I’ve noticed that there seems to be little discussion about the fact that by seizing at the domain level you break more than just the web site. You take the MX records away as well. Which of course makes it impossible for anyone to email you.

Seems a bit of a problem if you don’t get to talk to folks through what is to many people a primary source of communication.

vivaelamor (profile) says:

Re: What about MX records

“I’ve noticed that there seems to be little discussion about the fact that by seizing at the domain level you break more than just the web site. You take the MX records away as well. Which of course makes it impossible for anyone to email you.”

I did touch on that fact in response to someone who claimed a sub domain is the same as a ‘folder site’. It’s a great point: even if people can access a site by IP address, they would not be able to use email.

Paul (profile) says:

Re: Re: Re: What about MX records

More than likely it bounces, but someone will have to test.

Just because the email bounces doesn’t mean the government didn’t intercept it anyway.

IF the government is intercepting the email, AND If you are using PGP (or the like) then the government will get the encrypted email, which most likely they will not be able to read.

vivaelamor (profile) says:

Re: Re: Re: What about MX records

“Where does email addressed to a seized domain go?”

It seems that there are no MX (mail exchanger record) entries set for seized domains, but the standard protocol is to fall back and try the A record (normal IP address). The IP address in the A record does not appear to have any mail services running on it.

plancione (profile) says:

Re: Re: Re: What about MX records

“Where does email addressed to a seized domain go?”

Depends alot on the configuration and behavior of the recipient mail server. It could potentially do any of
the following potentially:

1. receive and deliver to the mailbox of the defendant.
2. reject and bounce back to sender.
3. if offline, then forward over to the MX system.

Killer_Tofu (profile) says:

Re: Re: Re:

Yes, all it takes is some random AC to say “that doesn’t make sense, they are not a lawyer, and don’t know what they’re talking about” and presto chango, debunked!
They are above facts and logical debate and proof with citation, as what the say are the facts. Gotta love the ACs for their comedic value at least I guess.

Anonymous Coward says:

http://www.techdirt.com/articles/20110312/00055613470/funniestmost-insightful-comments-week-techdirt.shtml#c923

And people make fun of you because you let idiots like Karl who has been proved over and over again to have NO IDEA what he’s talking about do your legal analysis for you. You should be ashamed to stand behind his analysis. LOL! How can you ever expect the legal analysis on your site to be taken seriously by anyone if Karl is your point man? LMFAO!

LOLOLOLOLOLOLOLO!!!

Rob Bodine (profile) says:

With regard to #1, the author (the lawyer) of the article never really justifies this statement:

“On balance, ownership of a domain is too important a private right and preventing copyright infringement is not an important enough public goal to justify seizure without prior notice or hearing.”

The standard is vague, and thus reasonable minds can disagree. The free speech argument (#2) is quite compelling, though, especially in light of the points made in #5. I’m concerned that the precedent being established is a step in the wrong direction.

Paul (profile) says:

Re: Re:

Actually he justified the importance of the domain by first pointing out that a domain is how other people, computers, and search engines find a site. All of these avenues for traffic to a site are blocked by seizing a domain even if the domain is put back on the web under a new domain. A domain is a critical factor in marketing and branding as evidenced by the willingness of companies to pay a great deal to secure particular domains (13 million for Sex.com for example).

Clearly a domain is a significant and lucrative asset, as the author explained.

He dismantled the importance of seizing a domain in the interest of stopping copyright infringement by pointing out how such seizures are 1) unlikely to make any difference in stopping copyright infringement, 2) a failure to stop copyright infringement is not necessary to preserve public safety, 3) will not effect the collection of revenue by the government in any measurable way, and 4) is not necessary to preserve evidence of a crime.

How you would claim that the author “never really justifies this statement” is beyond me.

Anonymous Coward says:

I don’t have a lot of time, so I’ll just look at his second point and add comments in brackets:

2. Seizures of Protected Speech Without a Hearing Violates The First Amendment.

Since the seized domain names are for websites that, at least arguably, contain speech, the seizures must also comply with the freedom of speech provisions of the First Amendment. [The domain names are being seized because they are property used to commit criminal copyright infringement. The fact that the website contains other speech is irrelevant.] Generally, the First Amendment does not permit prior restraint, which is when the Government censors material before it is distributed. [True, but if there’s any prior restraint here, it’s administrative prior restraint since it’s taking speech out of circulation, not censoring it before it’s distributed. But this isn’t prior restraint, so it’s irrelevant.] The Supreme Court has deemed prior restraint as ?the most serious and the least tolerable infringement on First Amendment rights.? [True, but irrelevant. Great quote though.] Instead of prior restraint, courts typically require the Government to allow the publication of the speech and then to sanction the offending party afterward. [In criminal copyright cases? Nope.]

There is a deepening debate about whether the domain name seizures are a prior restraint that violates the First Amendment. [Is there?] As Techdirt points out, like with due process, the Government must provide prior notice and hearing before it restrains ?potentially protected speech, with the intent to take material out of circulation.? [Legal Errors 101: Don’t cite Techdirt as precedent.] Seizing an entire domain has the hallmarks of a prior restraint because in doing so, ICE is indiscriminately taking both infringing and non-infringing material out of circulation. [The target is the infringement. The effect on noninfringing speech is irrelevant. See Arcara v. Cloud Books.]

On the other hand, supporters of the constitutionality of ICE?s actions, such as Terry Hart, point out that the Supreme Court has permitted prior restraint of certain items, such as obscene materials or threats to national security. [Obscenity law and national security are irrelevant here.] However, even these supporters recognize that these exceptions are premised on the Government ensuring a prompt judicial determination. [Irrelevant here.] Hart stated that ?in effect, the Court recognizes the danger that too long of a temporary restraint on speech-related items can have the effect of a final restraint.? [True, but irrelevant in criminal cases such as these.] While true, this analysis does not address the differences between obscene material and links to infringing material. [They are treated differently, so it doesn’t matter.] Additionally, it would not save ICE?s procedures because the Government has not, in fact, provided an immediate hearing on the seized domains. [Irrelevant as that’s not the standard in a civil in rem forfeiture pursuant to criminal copyright infringement.]

Even if the types of sites that have been previously targeted, often consisting of links to other sites, were not a form of protected speech, there is still concern that endorsing these seizures would ultimately lead to the Government seizing the domains of sites expressing viewpoints it deems dangerous. [Irrelevant FUD.] ICE Director John Morton told Politico that the Government was not interested in going after bloggers or discussion boards. [True, but irrelevant.] Morton said, ?We?re not about what is being said by anybody. We?re about making sure that the intellectual property laws of the United States, which are clear, are enforced. When somebody spends hundreds of millions of dollars to develop the next movie or a billion dollars to develop the next heart medicine, the innovation and the enterprise that went into that effort is protected as the law provides. It?s that simple.? [You go, Morton!]

Many commentators are not comforted by the Government?s assurance that they will not use their seizure power to attack anti-establishment viewpoints. [Irrelevant FUD.] Libertarian website, The Activist Post, declared after a round of seizures last month that ?we are rapidly approaching a day where information can no longer flow freely on the Internet. We better wake up and share these stories with everyone we know, because tyranny is fast approaching.? [Irrelevant FUD.]

Although we are not there yet, this is a legitimate concern. [Way to add to the FUD. When you can’t argue the law, argue the FUD!] Even if the Government does not directly go after certain types of speech, what is to stop the DHS from only going after copyright violations on sites with subversive opinions and ignoring copyright violations on pro-Government sites? [FUD.] The effect would be the same as any other prior restraint of speech. [FUD.]

Is this the best legal analysis you can find, Mike? It’s not even legal analysis. It’s just a few quotes and some FUD.

Anonymous Coward says:

Re: Re: Re:

And yet he offered no analysis of how the First Amendment interacts with copyright law, much less criminal copyright law. It’s a bunch of irrelevant nonsense about prior restraint and how it’s bad, mixed with some policy arguments and FUD. There’s not much there that even merits debunking because there’s not really much there. Tell you what, if he briefs the First Amendment issue, I’ll reply to his brief in kind.

Anonymous Coward says:

Re: Re: Re:4 Re:

Question: Does the US have an “innocent until proven guilty” bit in its laws, and if so, why doesn’t it apply in criminal copyright cases?

That actually is a question, I don’t know.

Of course it’s “innocent until proven guilty.” The tools of criminals get taken away upon showing of probable cause to a judge. That’s what’s happening with these seizures. That doesn’t mean there’s not a presumption of innocence.

Anonymous Coward says:

Re: Re: Re:6 Re:

Going to a judge is due process.

This has been stated on this blog hundreds of times.

Copyright infringement is something a judge can make an objective opinion about when issuing a warrant. That’s the law. The accusation has been made that the court made its determination on 4 label-provided songs that the ICE agent used as examples in his affidavit. If those had been the only examples of infringement on that site, there would be a problem for ICE. However the agent stated the 4 examples were not the entirety of the evidence, and indeed, the site was awash in infringing material. Therefore the 4 song example might be embarrassing for the ICE agent, but is immaterial in terms of the legality of the seizure.

Also, the way infringement cases differ from obscenity cases is that classifying something as obscenity has been granted a higher burden of proof than copyright infringement, therefore more difficult for a judge to simply sign off on.

Jay says:

Re: Re: Re:11 Re:

But it sure as hell doesn’t take MONTHS to occur…

It sure as hell doesn’t have the case closed mere moments after someone loses their property…

It sure as hell doesn’t has a chance for people to be HEARD in regards to their own viewpoint, not just the government’s. I would really look closely in the mirror. Your position is looking quite destitute by ignoring the due process rights of others. ALL people have a presumed innocence before a judge in a court of law. ICE is twisting that for no reason other than the pleas of a very biased industry that is willing to do anything in pursuit of profit and control.

That is more disturbing than their perceived lack of justice.

freak (profile) says:

Re: Re:

At first, I wad glad you took some time to look through it, but then I started reading your comments.

“Talk about other places where the first amendment is compromised? Irrelevant to a discussion on free speech”

I can summarize the ‘insight’ you brought to the conversation thusly:
a)”FUD!”
b)”Irrelevant”

Really, if you’ve come here so often, and ‘debunked’ this stuff so often, here’s a suggestion:
Gather up your arguments, quotations, references, bibliographies, etc., post them to your own website, and when the topic comes up again here, post the link.

Save yourself time, and if you have an argument, it’ll be much easier to understand in a non-fragmented form.

keiichi969 (profile) says:

Re: Re:

[The target is the infringement. The effect on noninfringing speech is irrelevant. See Arcara v. Cloud Books.]

You mean this Acara vs Cloud Books?

Whether the First Amendment bars enforcement of a statute authorizing closure of a premises found to be used as a place for prostitution and lewdness because the premises are also used as an adult bookstore.

Oh and its findings?

First Amendment claim denied; holding that First Amendment coverage did not apply to state statute intended to prohibit illegal uses of premises

Allow me to highlight the difference here.

In Acara, New York state statues allowed the state to force the closure of any building found to be a public health nuisance.

What statute allows for the seizure of domain names, in the case of copyright infringement?

Don’t use the whole “Evidence in the comission of a crime” excuse. If that was true, they’d have to seize the server, as the domain name contains NO content whatsoever.

I will also point out that in Acara, the complaint was filed, an investigation was performed, and the seizure was a result of that action.

The Supreme Court decision did NOT overturn any convictions of prostitution against the owners, it was merely to decide if closure of the premises was allowed under the law.

Anonymous Coward says:

Re: Re: Re:

What statute allows for the seizure of domain names, in the case of copyright infringement?

17 U.S.C. 506(b) and 18 U.S.C. 2323.

Don’t use the whole “Evidence in the comission of a crime” excuse. If that was true, they’d have to seize the server, as the domain name contains NO content whatsoever.

It’s seized because it’s property used to commit or facilitate criminal copyright infringement.

I will also point out that in Acara, the complaint was filed, an investigation was performed, and the seizure was a result of that action.

The Supreme Court decision did NOT overturn any convictions of prostitution against the owners, it was merely to decide if closure of the premises was allowed under the law.

The Arcara argument (in part) is: Just as prostitution, which is not protected expression, could not invoke First Amendment protection because it took place in a bookstore, so too piracy, which also is not protected expression, cannot invoke First Amendment protection because it happens on a blog.

keiichi969 (profile) says:

Re: Re: Re: Re:

Lets see here.

17 U.S.C. 506(b)

Forfeiture and Destruction. – When any person is convicted of
any violation of subsection (a), the court in its judgment of
conviction shall, in addition to the penalty therein prescribed,
order the forfeiture and destruction or other disposition of all
infringing copies or phonorecords and all implements, devices, or
equipment used in the manufacture of such infringing copies or
phonorecords.

Nope, don’t see domain names there. It specifically mentions devices used in CREATING infringing works.

This is aimed at commercial infringement, like making bootleg DVDs.

Lets take a look at the other one.

(1) Property subject to forfeiture.?
The following property is subject to forfeiture to the United States Government:
(A) Any article, the making or trafficking of which is, prohibited under section 506 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title.
(B) Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of an offense referred to in subparagraph (A).
(C) Any property constituting or derived from any proceeds obtained directly or indirectly as a result of the commission of an offense referred to in subparagraph (A).

A: Doesn’t apply, there was no production or trafficking.
B: Referrs to A, which doesn’t apply
C: Unless they can prove that the domain was purchased with the proceeds of infringement,(which is hard because the domain was likely purchased first), this would also not apply.

Unless you mean this one:

1) Property subject to forfeiture.?
The court, in imposing sentence on a person convicted of an offense under section 506 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title, shall order, in addition to any other sentence imposed, that the person forfeit to the United States Government any property subject to forfeiture under subsection (a) for that offense.

Oops, there’s that pesky word conviction…

Nice try though.

Anonymous Coward says:

Re: Re: Re:2 Re:

LOL! You quoted it.

“(B) Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of an offense referred to in subparagraph (A).”

One of the offenses listed is criminal copyright infringement.

So, putting it together: They can seize “any property used, or intended to be used, in any manner or part to commit or facilitate the commission of” criminal copyright infringement.

Couldn’t be any clearer than that.

keiichi969 (profile) says:

Re: Re: Re:3 Re:

You apparently missed the last half of that sentence.

Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of an offense referred to in subparagraph (A). [See below]

(A) Any article, the making or trafficking of which is, prohibited under section 506 of title 17, or section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90section 2318, 2319, 2319A, 2319B, or 2320, or chapter 90, of this title.

He is not making or trafficking. He is linking, which is neither producing infringing material, nor trafficking it. He is making no copies.

Almost everything in those sections listed in A, invlove criminal commercial copyright violations, like copying and selling counterfeit dvds.

cc (profile) says:

Re: Re: Re:5 Re:

Did he commit criminal infringement? Very questionable, he was only linking. Did he facilitate anyone to commit criminal infringement? Probably not the viewers, who’d be civil infringers if anything at all. The uploaders, then? If yes, does that mean any site owner linking to content that turns out to be infringing can have his property seized? And in turn, if yes, is something like that unconstitutional, or will Mr Washington be making trillions of volts of static electricity from spinning in his grave..?

Jay says:

Re: Re: Re:7 Re:

Trafficking and distributing WHAT?

Google gets paid to say “we don’t know the answer, look here”

Brian, essentially did the exact same thing by just pointing to where the content WAS.

PLEASE, finish your sentence! It’s annoying to have someone say someone’s guilty of a crime before they’ve had their day in court.

Anonymous Coward says:

Re: Re: Re:8 Re:

Google doesn’t link to illegal material to the general exclusion of any legal material.

This also has been explained here hundreds of times at this point.

Again, when people try to pretend all search engines “are just like Google” they just end up looking silly and pathetic.

Jay says:

Re: Re: Re:9 Re:

So let’s get it straight…

The Perfect 10 ruling doesn’t help the ruling.

The fact that his site only holds the link, no content or anything else, says nothing about how our law system actually uses the law to find someone innocent without criminal infringement being involved and you have nothing backing you up other than these conversations that magically carry over. Got it.

Not having anything to argue with, and still loving the FUD I see?

Jesse (profile) says:

Re: Re: Re: Re:

No one is arguing that piracy is protected speech, or that piracy can be shielded from civil or criminal charges if alongside the piracy exists protected speech. We are arguing that before seizing property used for protected speech, there must be an adversarial hearing (AKA due process). Here, there was none.

What’s so hard about due process? If they have a strong case, then they should make it. These efforts to sidestep due process are telling of their confidence in these claims.

Obvious troll is obviously a troll. Take your strawman elsewhere, it’s not ours, we don’t want it.

Anonymous Coward says:

Re: Re:

Edited for some clarity and commentary.

I don’t have a lot of time, so I’ll just look at his second point and add comments in brackets:

2. Seizures of Protected Speech Without a Hearing Violates The First Amendment.

Since the seized domain names are for websites that, at least arguably, contain speech, the seizures must also comply with the freedom of speech provisions of the First Amendment. [The domain names are being seized because they are property used to commit criminal copyright infringement. The fact that the website contains other speech is irrelevant.] Generally, the First Amendment does not permit prior restraint, which is when the Government censors material before it is distributed. [True, but if there’s any prior restraint here, it’s administrative prior restraint since it’s taking speech out of circulation, not censoring it before it’s distributed. But this isn’t prior restraint, so it’s irrelevant.] The Supreme Court has deemed prior restraint as ?the most serious and the least tolerable infringement on First Amendment rights.? [True, but irrelevant. Great quote though.] Instead of prior restraint, courts typically require the Government to allow the publication of the speech and then to sanction the offending party afterward. [In criminal copyright cases? Nope.]

There is a deepening debate about whether the domain name seizures are a prior restraint that violates the First Amendment. [Is there?] As Techdirt points out, like with due process, the Government must provide prior notice and hearing before it restrains ?potentially protected speech, with the intent to take material out of circulation.? [Legal Errors 101: Don’t cite Techdirt as precedent.] Seizing an entire domain has the hallmarks of a prior restraint because in doing so, ICE is indiscriminately taking both infringing and non-infringing material out of circulation. [The target is the infringement. The effect on noninfringing speech is irrelevant. See Arcara v. Cloud Books.] ALERT - ONLY RELEVANT COUNTERPOINT IS HERE

On the other hand, supporters of the constitutionality of ICE?s actions, such as Terry Hart, point out that the Supreme Court has permitted prior restraint of certain items, such as obscene materials or threats to national security. [Obscenity law and national security are irrelevant here.] However, even these supporters recognize that these exceptions are premised on the Government ensuring a prompt judicial determination. [Irrelevant here.] Hart stated that ?in effect, the Court recognizes the danger that too long of a temporary restraint on speech-related items can have the effect of a final restraint.? [True, but irrelevant in criminal cases such as these.] While true, this analysis does not address the differences between obscene material and links to infringing material. [They are treated differently, so it doesn’t matter.] Additionally, it would not save ICE?s procedures because the Government has not, in fact, provided an immediate hearing on the seized domains. [Irrelevant as that’s not the standard in a civil in rem forfeiture pursuant to criminal copyright infringement.]

Even if the types of sites that have been previously targeted, often consisting of links to other sites, were not a form of protected speech, there is still concern that endorsing these seizures would ultimately lead to the Government seizing the domains of sites expressing viewpoints it deems dangerous. [Irrelevant FUD.] ICE Director John Morton told Politico that the Government was not interested in going after bloggers or discussion boards. [True, but irrelevant.] Morton said, ?We?re not about what is being said by anybody. We?re about making sure that the intellectual property laws of the United States, which are clear, are enforced. When somebody spends hundreds of millions of dollars to develop the next movie or a billion dollars to develop the next heart medicine, the innovation and the enterprise that went into that effort is protected as the law provides. It?s that simple.? [You go, Morton!]

Many commentators are not comforted by the Government?s assurance that they will not use their seizure power to attack anti-establishment viewpoints. [Irrelevant FUD.] Libertarian website, The Activist Post, declared after a round of seizures last month that ?we are rapidly approaching a day where information can no longer flow freely on the Internet. We better wake up and share these stories with everyone we know, because tyranny is fast approaching.? [Irrelevant FUD.]

Although we are not there yet, this is a legitimate concern. [Way to add to the FUD. When you can’t argue the law, argue the FUD!] Even if the Government does not directly go after certain types of speech, what is to stop the DHS from only going after copyright violations on sites with subversive opinions and ignoring copyright violations on pro-Government sites? [FUD.] The effect would be the same as any other prior restraint of speech. [FUD.]

Is this the best legal analysis you can find, Mike? It’s not even legal analysis. It’s just a few quotes and some FUD.

Anonymous Coward says:

Re: Re: Re:

From Arcara v. Cloud Books:

That court ignored a crucial distinction between the circumstances presented in O’Brien and the circumstances of this case: unlike the symbolic draft card burning in O’Brien, the sexual activity carried on in this case manifests absolutely no element of protected expression. In Paris Adult Theatre I v. Slaton, 413 U.S. 49, 67 (1973), we underscored the fallacy of seeking to use the First Amendment as a cloak for obviously unlawful public sexual conduct by the diaphanous device of attributing protected expressive attributes to that conduct. First Amendment values may not be invoked by merely linking the words “sex” and “books.”

It seems that in Arcara v. Cloud Books, a key point was that the prostitution didn’t actually have anything to do with the books. Please explain why a link to an infringing mp3 file on a blog commenting on that mp3 file “manifests absolutely no element of protected expression.”

(Note: I’m not claiming this would be fair use, just that “manifests absolutely no element of protected expression” is a bar far more easily met by prostitution than by speech, even infringing speech.)

Anonymous Coward says:

Re: Re: Re: Re:

It seems that in Arcara v. Cloud Books, a key point was that the prostitution didn’t actually have anything to do with the books. Please explain why a link to an infringing mp3 file on a blog commenting on that mp3 file “manifests absolutely no element of protected expression.”

(Note: I’m not claiming this would be fair use, just that “manifests absolutely no element of protected expression” is a bar far more easily met by prostitution than by speech, even infringing speech.)

The illegal activity that’s drawing the remedy here, copyright infringement, is not protected expression. Copyright is treated differently than other regulations that affect speech because it has its own built-in First Amendment protections. See Eldred v. Ashcroft, for example. The First Amendment is not a bar to ex parte seizures in criminal copyright cases. The one thing missing in all of these cries of “prior restraint” is any case law that says a prior adversary hearing is necessary in a criminal copyright infringement case.

Anonymous Coward says:

Re: Re: Re:

I marked them as irrelevant because they are. I gave as in-depth an analysis as he did–meaning not very in-depth at all. If you want me to dig deep and go head-to-head with your friend, I’m more than happy to oblige him, as I indicated.

And no, I didn’t say it’s “totally immune to the rest of the law.” That’s just a typical response from you–you pretend like it’s all or nothing. It’s nuanced, Mike, just like everything else.

cc (profile) says:

Re: Re: Re:3 Re:

The inevitable? You mean that more enforcement is coming? We know that. Actually, we even know that more enforcement is coming after that.

But we also know that at some point people will push back hard and you may end up losing all IP law as a result.

Same thing that happens to all oppressive things. Maybe that’ll be a bad thing in the long term (who knows?), but you won’t have anyone else to blame but yourselves — and you’ve been warned.

Jesse (profile) says:

Re: Re: Re:3 Re:

What exactly do you think is inevitable? How do you plan on enforcing laws that the majority of the population does not support?

The concept of IP is eroding before our eyes. Tell me I’m wrong. You can’t simultaneously argue that so many people are pirating content that it’s destroying entire industries, and then turn around and say that the majority of the population is on your side. What exactly do you think the government is going to do when 90 percent of the population has no qualms about downloading their favorite game/movie/song?

I don’t know what world you’re living in. Unless your counting on a dictatorship to enforce overwhelmingly unpopular laws, you need to come back to reality.

Anonymous Coward says:

Re: Re: Re:4 Re:

The concept of IP is eroding before our eyes.

Your can dream about your Marxist fantasy all day long, but that doesn’t mean there is even the slightest chance it will ever come true.

I don’t know what world you’re living in.

It’s definitely not the dream world you live in. IP affects so many more things than entertainment. Just because you’re so hopelessly addicted to it that you’re forced to steal like some kind of hopeless junkie, doesn’t mean the majority of population is also, and is willing to give up IP to subsidize your addiction.

Try getting out of the basement more often; your thought processes are sociopathic.

cc (profile) says:

Re: Re: Re:5 Re:

I’m sure they said EXACTLY the same things about slavery, and we still ended up with those human right things.

Strange how societies work, huh?

But don’t let that get you down — even though you are a caricature of all that is evil and stupid in the world, you’re still our favourite batshit crazy AC of all time.

Anonymous Coward says:

Re: Re: Re:8 Re:

What about it? Are you trying to compare the use of humans as slaves to your made-up “right” to rip off music and feed your hopeless media addiction?

Greedy slave owners = greedy media addicts. Comparing the use of humans as slaves to entertainers working for free is a much better analogy. And I think you know it.

velox says:

Re: Re: Re:9 Re:

If copyright lasts a lifetime beyond the lifetime of the guy who labored to produce the work, then that means that the people who own the rights to that copyrighted material don’t have to do any work of their own after the original author is dead and gone. They can sit on their hind ends while other people serve them.

Explain to me again how this promotes productivity.
I think most people have an intuitive sense that this is wrong, and that’s a large part of why you are losing public opinion.

I’m not too sure I want to get very far comparing slavery and the current IP situation, but lets observe that in the first half of the 19th century, wealthy Southerner’s were able to do exactly that — sit around while other served them. Now look where that got them. Economically they were steam-rolled by the North.

Mike Masnick (profile) says:

Re: Re: Re: Re:

It’s not me saying that. It’s the Supreme Court. When you’re a criminal, you can’t hide behind your noncriminal activity.

No one’s saying that they want to “hide behind” the “noncriminal activity.” They’re saying that even if there *is* criminal activity, the legal action must be focused on that criminal behavior and NOT on stopping expression without an adversarial hearing.

Again, no one has said that these sites should just be left up entirely with no consequences. If they broke the law, let’s have that determined by a trial where all the evidence can be presented. Why are you so against letting the other side speak?

And why would you pretend that ANYONE here has said that you can hide behind legal activity. No one said that. It’s so sad when you resort to outright fabrications.

Anonymous Coward says:

Re: Re: Re:2 Re:

You’re the one saying their legal activity makes them eligible for special treatment. It doesn’t.

The point was that the fact that noninfringing activity takes place on a website is not a shield that prevents that site’s domain name from being seized ex parte if the site is also used to commit criminal copyright infringement.

Over a century of ex parte seizures in criminal copyright infringement cases, and you can’t you point to one court that says a prior adversary hearing is necessary. Why is that, Mike? Please answer me this.

Mike Masnick (profile) says:

Re: Re: Re:3 Re:

The point was that the fact that noninfringing activity takes place on a website is not a shield that prevents that site’s domain name from being seized ex parte if the site is also used to commit criminal copyright infringement.

No, the point is that it absolutely DOES prevent that seizures as has been explained to you multiple times.

Secondly, WHERE IS THE CRIMINAL INFRINGEMENT? No one has shown that yet.

Over a century of ex parte seizures in criminal copyright infringement cases, and you can’t you point to one court that says a prior adversary hearing is necessary. Why is that, Mike? Please answer me this.

Proving a negative. The particular issues in this case haven’t been tried yet.

Anonymous Coward says:

Re: Re: Re:4 Re:

No, the point is that it absolutely DOES prevent that seizures as has been explained to you multiple times.

No, you haven’t shown one single criminal copyright infringement case where the court said a prior adversary hearing is needed. Whatever incidental effect the seizures may have on protected speech is irrelevant. That’s the lesson from Arcara.

Secondly, WHERE IS THE CRIMINAL INFRINGEMENT? No one has shown that yet.

In the forfeiture proceedings, the government will have to prove this element.

Proving a negative. The particular issues in this case haven’t been tried yet.

Nope. Proving a negative would be asking me to prove that a prior adversary hearing is not needed. I’m asking you to prove a positive. You claim a prior adversary is demanded by the First Amendment, yet you can’t prove it.

You don’t seem to get it though. Over a century of such seizures and not one court has ever said a prior adversary hearing is necessary. That SHOULD tell you something.

Anonymous Coward says:

Re: Re: Re:5 Re:

In the forfeiture proceedings, the government will have to prove this element.

Is that right? I thought that the government need only show probable cause that the underlying crime occurred, which already happened when the magistrate signed the warrant. The burden then shifts to the property claimant.

See United States v. One Sharp Photocopier, 771 F.Supp. 980, 983 (D. Minn. 1991) (“Although a criminal conviction would generally suffice to demonstrate probable cause, such a conviction is not a prerequisite to a civil forfeiture proceeding. Once the government establishes probable cause, the burden in forfeiture proceedings shifts to the claimant. The claimant then must demonstrate by a preponderance of the evidence that the defendant property was not involved in illegal activity. If the claimant fails to meet this burden, the government’s showing of probable cause alone will support summary judgment of forfeiture.”)

Anonymous Coward says:

Re: Re: Re:6 Re:

Is that right? I thought that the government need only show probable cause that the underlying crime occurred, which already happened when the magistrate signed the warrant. The burden then shifts to the property claimant.

See United States v. One Sharp Photocopier, 771 F.Supp. 980, 983 (D. Minn. 1991) (“Although a criminal conviction would generally suffice to demonstrate probable cause, such a conviction is not a prerequisite to a civil forfeiture proceeding. Once the government establishes probable cause, the burden in forfeiture proceedings shifts to the claimant. The claimant then must demonstrate by a preponderance of the evidence that the defendant property was not involved in illegal activity. If the claimant fails to meet this burden, the government’s showing of probable cause alone will support summary judgment of forfeiture.”)

That certainly says I’m wrong. Thank you. I cited that case just the other day, so I should have known that. I swear I’ve read other forfeiture cases where the burden worked the other way, though. Hmmm.

Interesting tidbit… I read one case that stated in a seizure such as this (civil in rem forfeiture pursuant to criminal activity), the property owner DOES NOT have the right to instigate proceedings for the return of the property, like with a Rule 41(g) motion. I thought that was interesting. The owner has to wait for the government to initiate the forfeiture proceedings.

I could be wrong about that too. I’m not well-versed in the procedural workings of these forfeitures.

Karl (profile) says:

Re: Re:

[The domain names are being seized because they are property used to commit criminal copyright infringement. The fact that the website contains other speech is irrelevant.]

Claiming it’s “irrelevant” is laughably untrue, and simply dodging the question. It’s not irrelevant, and no applicable case has ever claimed it was.

[True, but if there’s any prior restraint here, it’s administrative prior restraint since it’s taking speech out of circulation, not censoring it before it’s distributed. But this isn’t prior restraint, so it’s irrelevant.]

What kind of “prior restraint” it is, bears little relevance to the issue. You could be totally right (in fact I believe you are), and it would not affect his argument in the slightest. And, yes, taking non-infringing speech out of circulation is prior restraint, no matter how you slice it.

[True, but irrelevant. Great quote though.]

Other than the “irrelevant” part, we agree here.

[In criminal copyright cases? Nope.]

In criminal copyright cases? Yep. Note he said “typically,” not “always.” Even in criminal copyright cases, ex parte seizures just of the infringing material are very rare. (Not so rare in trademark infringement cases, but that’s because a counterfeit handbag is not “speech” in any sense.)

[Legal Errors 101: Don’t cite Techdirt as precedent.]

Aha. You dismiss my arguments because “I’m not a lawyer,” but when a lawyer says it, you dismiss it because it was also said by me. This is pretty much the definition of circular reasoning. Or perhaps “circular blindness” would be a better term.

On a related note – I’m both heartened and flattered that Makarewicz linked to my article. Makes me feel all warm and fuzzy inside.

[The target is the infringement. The effect on noninfringing speech is irrelevant. See Arcara v. Cloud Books.]

You know very well that copyright cases are among those that are not within Arcara’s scope. Both I and many others have thoroughly debunked that claim. The fact that you refuse to admit it speaks against you, not against Makarewicz.

[Obscenity law and national security are irrelevant here.]

Not “controlling,” in the legal sense, but they are analogous, so it’s wrong to call them “irrelevant.”

The next few quotes are just more claims of “irrelevant,” even though they’re directly relevant. Again, claiming something is “irrelevant” doesn’t make it so.

[They are treated differently, so it doesn’t matter.]

First: I don’t know what you mean here. Either Hart did in fact treat them differently (in which case you should say “so Makarewicz was wrong”), or Hart did not, in which case you’re simply agreeing with Makarewicz.

Second: you’re the one that wants to lump in copyright infringement with non-content-related crimes like drug dealing. If anyone is guilty of this fallacy, it’s you.

Third: Makarewicz didn’t bring this up, but the seizures were predicated on ICE viewing copyright infringement the same as commercial counterfeiting of trademarked goods. They are not being “treated differently.” They should be.

[Irrelevant as that’s not the standard in a civil in rem forfeiture pursuant to criminal copyright infringement.]

The vast, vast majority of in rem forfeitures, even in criminal copyright infringement cases, occur only after an adversarial hearing has occured. For the rest, an adversarial hearing is immediate. (The warrants are usually served to the defendants themselves, who are able to go before a judge within hours.) I have absolutely no idea why you think it’s not the standard.

So, as the kids say nowadays, [citation needed].

[Irrelevant FUD.]

Not only an irrelevant “irrelevant,” but an inaccurate “FUD.” You’re on a roll today, youngster. Keep up the vitrol, and maybe the Kool-Aid man won’t haunt your dreams tonight.

[You go, Morton!]

Yes, you go, Morton! …No, I mean literally. There’s the door. Don’t let it hit your ass on the way out.

Anonymous Coward says:

Re: Re: Re:

Claiming it’s “irrelevant” is laughably untrue, and simply dodging the question. It’s not irrelevant, and no applicable case has ever claimed it was.

No, it is irrelevant. Copyright law begets its own First Amendment considerations. If you were actually a lawyer you would know that.

And, yes, taking non-infringing speech out of circulation is prior restraint, no matter how you slice it.

Except you’re wrong again. There is no prior restraint, because copyright law begets its own First Amendment considerations. If you were actually a lawyer you would know that.

You know very well that copyright cases are among those that are not within Arcara’s scope. Both I and many others have thoroughly debunked that claim.

Sorry, no. You’re bogus attempt at trying to get rid of Arcara has been debunked here so many times that it’s sad. You tried to hang your hat on what was expressive or not, when the only thing that mattered was that infringement is not protected expression. And it still isn’t. Which is why Arcara applies. Every time.

The next few quotes are just more claims of “irrelevant,” even though they’re directly relevant. Again, claiming something is “irrelevant” doesn’t make it so.

No, they were irrelevant. Cobbling together fragments from unrelated cases is irrelevant. Trying to complicate a simple scenario is the definition of making irrelevant statements.

The vast, vast majority of in rem forfeitures, even in criminal copyright infringement cases, occur only after an adversarial hearing has occured.

As stated above, the fact that you cannot cite any case law saying a prior adversary hearing is necessary in a criminal copyright infringement case says it all.

Karl (profile) says:

Re: Re: Re: Re:

No, it is irrelevant. Copyright law begets its own First Amendment considerations. If you were actually a lawyer you would know that.

Oh. So when we talk about Arcara, you say that copyright infringement has no First Amendment considerations whatsoever. Now, you’re saying it does. Which is it?

Copyright may have some differences in regards to other restrictions on content. That does not mean it has none. It does not mean the First Amendment can be completely ignored.

Except you’re wrong again. There is no prior restraint, because copyright law begets its own First Amendment considerations. If you were actually a lawyer you would know that.

And here we have that circular blindness again. A lawyer said you’re wrong, and when I defend that lawyer, I don’t know what I’m talking about, because I’m not a lawyer. Cute.

Prior restraint can occur in cases even when the underlying law itself has no First Amendment considerations. That’s what the O’Brien standard addresses.

Let me give you an example. Suppose an overzealous DEA agent decided that High Times magazine was “aiding and abetting” drug use, solely because they allowed someone who sold bongs to advertise in their magazine. As a result, they seize every issue of the magazine, and lock the doors to their offices. Do you honestly think there would be no First Amendment implications?

You tried to hang your hat on what was expressive or not, when the only thing that mattered was that infringement is not protected expression. And it still isn’t. Which is why Arcara applies. Every time.

If the only thing that mattered was whether a type of expression was protected expression, then Arcara would also apply to obscenity, libel, or trade secrets – none of which is protected expression, either. It does not. That’s simply not relevant to Arcara.

I was “hanging my hat” on what Arcara actually said. It only applies when laws “impose no restraint at all on the dissemination of particular materials.” It only applies when determining guilt “would not be imposed on the basis of an advance determination that the distribution of particular materials is prohibited.” It only applies when the law cannot possibly “single out bookstores or others engaged in First Amendment protected activities for the imposition of its burden,” as copyright law must.

And no matter how much you deny it, alleged infringement “was conduct with a significant expressive element that drew the legal remedy in the first place.” The fact that in the dajaz1 case, the materials were actually protected by the First Amendment should make this clear.

You are simply wrong. And you know it. Everyone else knows it, too – which is why you’re the only one who is still making that argument. It’s certainly never been made in any copyright case, ever.

Cobbling together fragments from unrelated cases is irrelevant. Trying to complicate a simple scenario is the definition of making irrelevant statements.

Wow. You can actually say that with a straight face? It’s the only thing you’ve been doing since you started posting here.

the fact that you cannot cite any case law saying a prior adversary hearing is necessary in a criminal copyright infringement case says it all.

If I can’t find a case that says it is necessary, it’s only because I couldn’t hunt down a criminal copyright case where an ex parte seizure happened at all. Plenty of civil cases – but those all had to follow the rules that you, somehow, don’t believe apply to the government. Most cases don’t involve ex parte seizures, but ex parte injunctions. And a few of those were judged to be prior restraint, even when it was only the “infringing” material that was taken out of circulation (e.g. the Suntrust case).

Not one copyright case, ever, has judged that it was OK for non-infringing content to be “collateral damage.”

And I can, and did, cite the actual seizure rules, which say that a prior adversarial hearing must be held, except in “exigent” circumstances. This applies to all seizure rules – 17 USC 1116(d)(4)(b) and 18 985(d) both have similar language, while 18 USC 983 and 17 USC 512(j)(3) – this last one dealing specifically with online infringement – do not allow for ex parte seizures at all.

You keep implying that these seizures are run-of-the-mill copyright seizures. They are not. They are unprecidented, and unconstitutional.

Anonymous Coward says:

Re: Re: Re:4 Re:

nah, just tired of pointing out the same facts, only to be greeted with immaterial statements.

“Alleged infringement” does not grant any cover whatsoever from a seizure when the judge has determined probable cause.

His DEA analogy was ridiculous for example; talking about completely different areas of law.

Talking about civil cases when this is a criminal case; and no, it doesn’t matter that it was conducted as a civil forfeiture, as the government conducts civil forfeiture in criminal cases. I pointed that out to him months ago.

Saying there had to be an adversary hearing when seizures take place in criminal cases all the time without a hearing.

And on and on.

You guys don’t care about facts, just what you’re dying to believe, as the cops have finally shown up to end the party.

Jay says:

Re: Re: Re:5 Re:

At least two people in a high position have noted that the lack of due process seems to hurt the ICE’s case.

The take down of 84,000 sites for nothing other than the allegation of child pornography should say something about how the process is flawed.

You’re not a lawyer, so you basically don’t care to back your opinion up with nothing more than FUD.

At least Karl is using the law. So is the lawyer that you can’t be bothered to actually debate. You come into this place with nothing more than the same tired argument about how something is FUD but I’ve yet to see you respond to the comments with nothing other than a childish glee to try to say your view is better.

*sigh*

Good luck on that.

Karl (profile) says:

Re: Re: Re:3 Re:

Take the same bet as Masnick: $500 says the seizures are legal. If I’m right, you donate $500 to MusiCares. If I’m wrong, you pick a charity and $500 of my money goes there.

Rule #1: don’t bet what you don’t have. I don’t have $500 to my name right now.

How about this: If the seizures are determined by a judge to be proper, I’ll post a public apology, and agree to stop commenting here. If the seizures are improper, then you agree to do the same.

If the case is appealed (I’m sure it will be either way), then the appellate court’s decision is the deciding one. But until then, we abide by the rules of the lower court. For instance, if the lower court decides they’re legal, I stop posting after my apology; but if the appellate court overturns the lower court, you post an apology and stop commenting, and I get to return and gloat. Or vice-versa.

Deal?

…Of course, this only works if you agree to get a username, and stop posting as an anonymous coward.

Anonymous Coward says:

Re: Re: Re:2 Re:

“No, it is irrelevant. Copyright law begets its own First Amendment considerations. If you were actually a lawyer you would know that.”

So when we talk about Arcara, you say that copyright infringement has no First Amendment considerations whatsoever. Now, you’re saying it does. Which is it?

See? You can’t even read correctly. I said copyright law has different First Amendment considerations (ones that do not benefit pirates), not copyright infringement, which has no protection at all.

Anonymous Coward says:

Re: Re: Re:2 Re:

How ’bout you find me one of those cases, and we’ll talk about it.

One such case has been mentioned already: United States v. One Sharp Photocopier, 771 F.Supp. 980 (D.Minn. 1991).

There are many, many others. You should hit a law library sometime. The fact is, ex parte seizures in criminal copyright infringement cases have been happening for over a century. Not one court has said a prior adversary hearing was mandated by the First Amendment.

By the way, the AC you’re responding to above is not me. I’m not going to keep making the same arguments with you, since we’re just repeating ourselves.

If you find some case that you think indicates that the First Amendment mandates a prior adversary hearing in either a criminal copyright, trademark, or child porn case, I’d be happy to discuss that. But as it is, you’ve presented nothing of the sort.

Karl (profile) says:

Re: Re: Re:3 Re:

One such case has been mentioned already: United States v. One Sharp Photocopier

When the other AC mentioned it, I tried getting the text of the ruling, but couldn’t find it. So I have no idea if it was criminal or civil, if it was seized ex parte, or what the plaintiff had to show.

You should hit a law library sometime.

My college has a criminal justice school, but not a law school (yeah, it’s one of those). Still, I’ll see if I can do that in my spare time. I’m going there today, even though I’m on spring break, to help my study group out for my C++ class.

Anonymous Coward says:

Re: Re: Re:4 Re:

771 F.Supp. 980. You can find it on Google easily.

In that case, the claimant’s photocopier was seized in connection with alleged copyright infringement ex parte after a search warrant was obtained and executed. The government never charged the claimant or anyone else with criminal copyright infringement in connection with the seizure. Six months later, the government filed a forfeiture complaint against the property. In deciding that the property could be seized, the court considered the proof submitted in connection with the search warrant, as well as affidavits the government collected in its investigation. The court specifically held, “The government may show probable cause on the basis of whatever evidence traditionally establishes probable cause, including hearsay. Although a criminal conviction would generally suffice to demonstrate probable cause, such a conviction is not a prerequisite to a civil forfeiture proceeding.” (Internal citations omitted).

Thus, property was seized (1) ex parte upon the issuance of a warrant, (2) it was property used allegedly as a tool or instrumentality of criminal copyright infringement, (3) no crime was ever charged or proved against the claimant or anyone else, (4) the government waited 6 months before bringing the forfeiture proceeding.

It was seized under copyright seizure laws (17 USC 509) that were repealed a few years ago.

Irrelevant. That’s like saying, “burglary is now codified in a different section, thus all common law relating to that former section is worthless.” Unless you can demonstrate that the underlying substantive powers of the government have been radically altered, the exact section is irrelevant. Legal opinions are full of references to “now codified at” which direct the reader to an updated code section. Re-organization of code sections is common, and is not a valid basis for challenging precedent.

Anonymous Coward says:

Re: Re: Re:5 Re:

That’s a very good point that you should keep in mind, Karl, as you’re reading old cases. Just because someone is charged under a different statute in a case that’s decades old, that doesn’t mean it’s not precedent. The fundamentals of criminal copyright infringement haven’t changed.

Anonymous Coward says:

Re: Re: Re:4 Re:

Forgot to add: I did find a few references to it online. It was seized under copyright seizure laws (17 USC 509) that were repealed a few years ago. So, there’s that.

That brings up a good point that will help you in your research of these ex parte seizures. Section 509 of Title 17 used to be the part of the Code that authorized ex parte seizures in criminal copyright cases. In 2008, that section was repealed. It was replaced with the current Section 506(b) by the same Act. It didn’t disappear. It was just reworded and moved. That section points to 18 U.S.C. 2323. Those two sections are the authority for these seizures. You won’t find much case law applying the two because they haven’t been around long together like this (the one pointing to the other). They were tweaked for the purpose of fighting criminal infringement, just as they’re being used now.

I don’t know if you caught Lofgren’s interview on Ars, she questions the authority to go after piracy like this. That struck me as weird because I recall her being against the PRO IP Act. I’m sure she’s well aware of it. http://arstechnica.com/tech-policy/news/2011/03/ars-interviews-rep-zoe-lofgren.ars

Anyway, you’ll find old case law on point under that old Section 509. Also check the old Supreme Court Copyright Rules, which were in force for about 70 years. Those were repealed in the 90s, I think. I read an article by Nimmer that explains the changes in these ex parte seizure laws. If I can find it again, I’ll give you the link. I’ll have to dig through my search history.

Just saw this: http://online.wsj.com/article/APb6887933c7ae42bda538d6e3ea945f1e.html I wonder if they made an ex parte seizure of his computer when they busted him? Probably.

That’s got me thinking… I believe you’ve mentioned in the past the when the goal is preservation of evidence, the First Amendment gives way and ex parte seizures are allowed. But then you argued that when the goal is to seize the instruments of crime for the purpose of simply taking away the criminal’s tools, the First Amendment analysis is different. Were you just making that up, or can you direct me to a case that makes that point? It’s an interesting argument, but it makes no sense to me. I was just wondering if that’s what you meant, and if so, can you back it up. Thanks.

Anonymous Coward says:

The gentleman providing the analysis does not raise issues that have gone unnoticed by other attorneys. Even those who may express an opinion on the likely outcome of each issue acknowledge that arguments cut both ways.

Importantly, the gentleman does not take an unequivocal position, as some might be led to believe from reading just the article presented here. He discusses various issues, and then presents both sides of the argument.

Part of the problem with the discussions relating to the seizures by ICE is that they tend to overlook that two different types of sites were targeted. Some were “content” related, but the majority were not.

Yet another problem is that virtually all of the sites reside outside the reach of US authorities. In circumstances such as these an In Rem proceeding is the only practical way to proceed.

The bottom line is that attorneys are able to entertain the notion that every legal matter has two sides, and suggestions that this is not the case are not wholly accurate.

Anonymous Coward says:

Re: Re:

Part of the problem with the discussions relating to the seizures by ICE is that they tend to overlook that two different types of sites were targeted. Some were “content” related, but the majority were not.

And that’s another problem that tracks with the coverage of Techdirt on these seizures: copyright, trademark, and child porn are treated differently, and the constitutional analysis for each is distinct and must be handled separately. As soon as I see someone arguing that the seizures are unconstitutional without even acknowledging that there’s actually three distinct analyses at play, I know the treatment is only cursory at best.

Mike Masnick (profile) says:

Re: Re:

Importantly, the gentleman does not take an unequivocal position, as some might be led to believe from reading just the article presented here. He discusses various issues, and then presents both sides of the argument.

Quoting from what *I* wrote in the article you insist does not give that impression: “It’s really quite a well-balanced piece, detailing arguments on both sides.”

Seriously. It seems like the latest tactic of the usual critics is to claim I didn’t say exactly what I said. Second time today.

Mike Masnick (profile) says:

Re: Re: Re: Re:

You state such in your second paragraph, but the 5 point summary suggests otherwise…and it was this to which I was referring

Wow. You can just admit that you failed to read what I wrote. That would be a lot more convincing then “yes, you wrote exactly what I insisted you did not write, but you didn’t write it a second time in another place.”

Really? Stunning.

Mike Masnick (profile) says:

Re: Re:

Part of the problem with the discussions relating to the seizures by ICE is that they tend to overlook that two different types of sites were targeted. Some were “content” related, but the majority were not.

You continue to make stuff up. So weird. We have not discussed the seizures that were counterfeit (ie. non content related). Why do you pretend (i.e., lie) and say that we did? I agree the legal analysis there is different. Which is why we haven’t focused on them — even though there are some separate issues there.

Yet another problem is that virtually all of the sites reside outside the reach of US authorities. In circumstances such as these an In Rem proceeding is the only practical way to proceed.

False on many accounts. Many of the sites seized did not, in fact, reside outside of the US. So, two points: just because some do reside outside the US, does that mean it’s suddenly okay to seize the speech of those in the US? Do you really want to hang your hat on that claim?

Second, even if they are outside the US, your claim that the ONLY practical course of action is a seizure is laughable. It is certainly possible to file a lawsuit and give the site owners an opportunity to respond prior to seizure. If you’re correct, and the sites are outside the US, and the owners do not respond, then you can get a default judgment and move on from there.

Only practical? Come on. Why do you make statements so obviously false?

Anonymous Coward says:

Re: Re: Re:

“Discussions” was used in a sense encompassing much more than just this particular article. Most “discussions” here and elsewhere tend to focus on issues that are not particularly relevant to the vast majority of the seizures.

Re the location of sites, by a large majority they were sites where the owners/operators of the sites were located outside the US. Of course, most dealt with counterfeit goods. The owners/operators not being subject to in personam jurisdiction by our federal courts, an in rem action was truly the only practical means at hand.

BTW, I do not know why the comment appears three times. Perhaps there was a glitch at my end because it took an inordinately long time for the comment to go through before the notice appeared that it had been posted.

Jesse (profile) says:

Re: Re: Re: Re:

There is no way to get a hold of a person outside of US jurisdiction? After, these are INTERNET domain names that were seized…maybe they could use…the internet. Just a thought.

A quick wikipedia search suggests that in rem judgments are for situations deciding the title to property. Is that to say that the owners/operators could not be subject to American law? Presumably, if a lawsuit or criminal charges could be filed against the owners, then the sites didn’t have to be seized without first serving said owners. Needless to say, based on your arguments there is absolutely no reason why American owner’s couldn’t have been given the chance to defend themselves at a hearing.

Mike Masnick (profile) says:

Re: Re: Re: Re:

“Discussions” was used in a sense encompassing much more than just this particular article. Most “discussions” here and elsewhere tend to focus on issues that are not particularly relevant to the vast majority of the seizures.

I was talking about beyond this particular article. Point me to where I wrote about the counterfeit seizures.

You can’t. Because I didn’t. So maybe admit that you were being misleading here in an attempt to falsely pretend that I had conflated the two issues? But you won’t.

Re the location of sites, by a large majority they were sites where the owners/operators of the sites were located outside the US. Of course, most dealt with counterfeit goods. The owners/operators not being subject to in personam jurisdiction by our federal courts, an in rem action was truly the only practical means at hand.

Again, this is false, and I don’t know why you repeat it. First, the fact that many may have been outside of the US should not enable the seizure of US sites. You didn’t respond to that, because you can’t, and because it takes away your entire argument.

Second, even if they were outside the US, there are procedures outside of seizure. You claiming seizing is the only solution is flat out incorrect.

Anonymous Coward says:

The gentleman providing the analysis does not raise issues that have gone unnoticed by other attorneys. Even those who may express an opinion on the likely outcome of each issue acknowledge that arguments cut both ways.

Importantly, the gentleman does not take an unequivocal position, as some might be led to believe from reading just the article presented here. He discusses various issues, and then presents both sides of the argument.

Part of the problem with the discussions relating to the seizures by ICE is that they tend to overlook that two different types of sites were targeted. Some were “content” related, but the majority were not.

Yet another problem is that virtually all of the sites reside outside the reach of US authorities. In circumstances such as these an In Rem proceeding is the only practical way to proceed.

The bottom line is that attorneys are able to entertain the notion that every legal matter has two sides, and suggestions that this is not the case are not wholly accurate.

Anonymous Coward says:

The gentleman providing the analysis does not raise issues that have gone unnoticed by other attorneys. Even those who may express an opinion on the likely outcome of each issue acknowledge that arguments cut both ways.

Importantly, the gentleman does not take an unequivocal position, as some might be led to believe from reading just the article presented here. He discusses various issues, and then presents both sides of the argument.

Part of the problem with the discussions relating to the seizures by ICE is that they tend to overlook that two different types of sites were targeted. Some were “content” related, but the majority were not.

Yet another problem is that virtually all of the sites reside outside the reach of US authorities. In circumstances such as these an In Rem proceeding is the only practical way to proceed.

The bottom line is that attorneys are able to entertain the notion that every legal matter has two sides, and suggestions that this is not the case are not wholly accurate.

DMNTD says:

really..

I have been reading over this situation for a bit like everyone else. You can ‘nuance’ all you like but what I see is a owner of a site that saw WHAT people wanted to find and put some ads up because, why not? Put the site up a while back that points people looking for material that might be infringing based on the alert color of that year. Just to wake up to his goods stolen as he does not own the domain registrar and can’t force due process.

I would have set it back up to, make me guilty and I would act guilty, why not?

Anonymous Coward says:

When all is said and done, this is just a repeat of past techdirt posts, with little added and certainly nothing solid to work from.

The courts have already ruled in the past that “some protected speech” may be hurt by legal action, and that is not something that negates the ability for legal action to happen. In otherwords, having a little text around your commercial copyright violation or your commercial pirated products site doesn’t make it immune to action. That takes out point 1 and 2. There is no prior restraint at issue here.

There is no reason for a hearing before seizure. Without the seizure, the illegal acts continue. With only notification of a hearing, it gives the domain owners a chance to move to another domain, and start the process all over again, while allowing authorities to work against a now empty domain. The cops don’t call drug dealers and give them a week’s notice before a drug raid, why should this be any different.

The moooo.com case once again is a single domain, not 84,000. The chance for error is small, and any issues can be addressed rapidly. You have to wonder how many sites moooo.com had to agree to remove from their domain before they got it back.

There is plenty of way for domain owners to reclaim their domain. They send lawyers to court to request an injunction. However, in criminal matters, it is very unlikely they will have much success.

Sorry Mike, once again you are trying way to hard on this one.

Anonymous Coward says:

Re: Re: Re:2 Re:

A single post? I doubt anyone would take action. Remember, these domain seizures are about criminal activity, not single copyright violations. Commercial copyright violations require much more than a single violating post. So your question is sort of a non-issue.

In the case of an illegal copyrighted work, if they received a DMCA and did nothing, they would create legal liablity for themselves.

Karl (profile) says:

Re: Re: Re:3 Re:

So your question is sort of a non-issue.

Not really. In many cases, the protected speech greatly outweighed the infringing speech.

In the case of an illegal copyrighted work, if they received a DMCA and did nothing, they would create legal liablity for themselves.

Apparently, you’re criminally liable even if you don’t ignore DMCA notices, since some sites did, in fact, take down content whenever they received them. ICE still seized their entire domain.

Anonymous Coward says:

Re: Re: Re:6 Re:

I guess the internet really does need a sarc mark.

LOL! I guess so, since I didn’t pick up on it.

The issue there is that the DMCA protects service providers from the actions of their users. It doesn’t protect those who themselves willingly take part in the infringement. I read a case that made the point that the Section 512 safe harbors could be raised as a defense in a Section 506 criminal case, so you’re not totally off the mark. The problem though is that once you personally willfully infringe, you’re looking at criminal liability. Since the safe harbors only protect you from the actions of your users and not yourself, they aren’t any help if you’re the infringer.

Back to my homework… I’m learning the ins-and-outs of making donations inter vivos of negotiable instruments. Yawn! If you ever want to donate a bearer bond to me, I’ll know how to make sure the donation sticks. 🙂

Anonymous Coward says:

Re: Re: Re:4 Re:

The sites had more than a few instances of infringement; the government wouldn’t have gone after them otherwise.

The sites could have a million message board posts, it doesn’t matter. No amount of legal activity can create a shield that allows willful and massive copyright infringement to occur.

Anonymous Coward says:

It’s a good read, and by a real lawyer.

It’s well-written, and entirely accurate.
Of course, that hardly matters. The corpocracy is above the law; it needs no oversight or legal justification for its actions. It simply acts. When people demand an explanation, the corpocracy mumbles a vague excuse and continues acting.
The corpocracy will continue to maintain its monopolies, attack its enemies, and expand its control. Another trade agreement will follow TPP, just as TPP followed ACTA, and ICE is undoubtedly preparing to sieze even more domains. So it goes.

Karl (profile) says:

Re: Re: Re:

You’tr [sic] trying to get someone to bet with you anonymously.

That just means it’s a “gentleman’s bet,” which it would have to be anyway.

I’m still taking the bet. $10 I can do, and it goes to a cause I like. To be honest, I’ll probably give anyway, even if I lose.

As for my charity, I can’t decide between the ACLU, the EFF, Demand Progress, Creative Commons, or the FSF. I’ll cross that bridge when I come to it.

goofygoober (profile) says:

well im all for upholding and fighting for constitutional rights, however i hope you are not implying this pertains in any way to the seizures of sites promoting/distributing kidie porn, because as far as im concerned trash like that deserves no rights,freedoms,or air in their lungs.I for one am glad they were seized and hope that the owners/operators are found and lynched.

The eejit (profile) says:

Re: Re:

But there were others who had committed no illegal act who had this put up instead of their webpage. Pretty sure that knowingly false character statements, which open ICE up to defamation.

Oh, and by the way, “THINK OF THE CHILDREN!!!!!!!!!” is the second worst argument for a law aside from “BUT THEM BLACKS DESERVE ALL THE BEATINGS THEY GET!!!!!”

Gene Cavanaugh (profile) says:

Non-lawyers and the law

I take exception to the argument that to make a legal point you “must be a lawyer”. NONSENSE!
True, non-lawyers sometimes (I think Mike is an exception, but “sometimes”) gum up the works with arguments that are clearly invalid, time-consuming, and confusing; but I have had non-lawyers make some excellent legal points; while I have had lawyers get so involved with minutia that their “legal conclusions” were pure fantasy.
So, for a non-lawyer – appearing in court may be a mistake, since judges (and other legal people) may resent having their time wasted with nonsense, but SPEAK UP! It is up to the lawyer to correct you with solid reasoning if he/she objects!

Anonymous Coward says:

Karl–

I didn’t find the Nimmer article I was looking for, but I found a different one by him that’s on point:

But by far the biggest impact on the infringer emerges from the seizure provisions of the Act. In the criminal copyright context, the Act provides, as an adjunct to conviction, for the ?forfeiture and destruction or other disposition of all infringing copies or phonorecords and all implements, devices, or equipment used in the manufacture of such infringing copies or phonorecords.? (17 U.S.C. Sec. 506(b).) Criminal trademark law contains a parallel forfeiture provision. (15 U.S.C. Sec. 1116.) But in neither case is it necessary to wait for arrest, trial and conviction for these remedies to mature. Rather, as soon as probable cause for arrest exists, a search warrant or a seizure warrant is usually obtainable. Then, the suspect can be arrested at the same time as (or even later than) his entire inventory and manufacturing apparatus is seized, never to be returned.

Again, let me illustrate with an example. In the case brought to my attention by the R.I.A.A., their investigation provided enough evidence to indicate probable cause of criminal copyright infringement via sound recapture. Thereupon, the F.B.I. executed a search warrant at three locations and took control of various items. First, the agents *6 confiscated all actual counterfeit cassette tapes of Bruce Springsteen, Talking Heads, Santana, etc. Second, the E B. 1. seized all genuine musical tapes on the premises, on the theory that the legitimate Springsteen tapes evidenced access to the music for the purpose of creating the bootleg tapes on the premises. They also simultaneously seized any blank cassettes on the premises, again as mute evidence recounting the various stages of the manufacturing process. Already it should be apparent how significantly this seizure curtailed the functioning of those three businesses. Third, the agents seized all records from the businesses, again as evidence of a crime. These records are often invaluable, providing the only access to the distribution network: when cassette tapes are typically distributed by faceless minions at far-flung swap meets, the only way to crack this part of the case is to obtain the manufacturer’s address book and check stubs and all the other paraphernalia documenting his distribution associates. Fourth and last, the agents seized all the machinery used in manufacturing the phonorecords. Thus, law enforcement seized a dozen pieces of large machinery, including highly sophisticated ?duping? machines worth tens of thousands of dollars. Because those machines were used in the commission of a crime, they became statutorily forfeit to the government. I remember my astonishment when viewing almost an entire warehouse crammed with sophisticated machines, boxes upon boxes of blank cassettes, counterfeit ?J? cards (the printed insert in a cassette tape box, analogous to a record jacket), the contents of desks, and on and on.

It takes little imagination to realize that those warrants completely shut down three businesses engaging in copyright infringement. In one visit by federal agents, the businesses lost their inventory, their business records, and their capital investments. True, the government must allow the targets access to their business records, but the other items are gone for good. The inventory and machinery are forfeit, subject to ultimate destruction or other appropriate disposition. Even when the party from whom they were seized ultimately is successful in obtaining return of the machinery, it is only upon payment of a ?ransom,’ and then following a lengthy disruption of business activities. Thus, the ancillary aspects of a criminal investigation often outweigh in significance the ultimate criminal penalty to be imposed.

David Nimmer, CRIMINAL COPYRIGHT AND TRADEMARK LAW: THE IMPORTANCE OF CRIMINAL SANCTIONS TO CIVIL PRACTITIONERS, 9 NO. 1 Ent. L. Rep. 3, 5 (emphasis added).

This is from one of the foremost experts in the world on U.S. copyright law. I suppose you’ll want to message him and explain how he doesn’t know what he’s talking about and how the First Amendment works. 🙂

Adam Wasserman (profile) says:

Re: Re:

Just jumping in here, so excuse me if I missed something in the exchange. It’s pretty dense up there…

But I wanted to say: the problem I see with using the above Nimmer article in relation to the ICE seizures is that to be truely analogous this case not would the F.B.I. had to have seized the “machinery” of the companies against whom they had probable cause, but also all of the “machinery”, “inventory”, and “business records” of every other legitimate business (for whom no probable cause was found)that had the misfortune to be located in the same ZIP code.

Anonymous Coward says:

Re: Re: Re:

Just jumping in here, so excuse me if I missed something in the exchange. It’s pretty dense up there…

But I wanted to say: the problem I see with using the above Nimmer article in relation to the ICE seizures is that to be truely analogous this case not would the F.B.I. had to have seized the “machinery” of the companies against whom they had probable cause, but also all of the “machinery”, “inventory”, and “business records” of every other legitimate business (for whom no probable cause was found)that had the misfortune to be located in the same ZIP code.

The Nimmer article is especially interesting because I believe he’s talking about his own experiences when he was a federal prosecutor. If anyone knows what can be seized ex parte in a criminal copyright case, it’s David Nimmer.

I’m not really sure I get your point though. What is seized is the domain name of a site where there’s probable cause of criminal copyright or trademark infringement, or perhaps child porn. The feds can kick in doors and put people in cuffs. They can seize computers, servers, machinery, etc. They can certainly seize the domain name.

If Prosecutor Nimmer kicks in the door with the U.S. Marshals at an illegal tape-duplicating factory that also happens to have separate equipment used to print the weekly circular at the local Baptist church, that’s just too bad for the church. They’ll have to sort that out later. That’s how these things work.

Adam Wasserman (profile) says:

Re: Re: Re: Re:

“They can certainly seize the domain name”

A URL is exactly analogous to a telephone number. The tld part of the domain is analogous to the area code, the second level domain corresponds to the prefix (or exchange) code, and any subdomain or pathname is equal to the line number (the last four digits of your phone number).

The domain mooo.com was registered by freedns. Freedns did not publish any sites on mooo.com and is not accused of hosting child porn.

What Freedns did is make subdomains of mooo.com available to people operating content sites… 84,000 of them. Less then ten (I believe) of these sites are accused of having child pornography on them. Instead of cutting off the subdomain (Very – in fact trivially – easy to do) which would be like cutting off the individual telephone, the cut off the entire second level domain which is equivalent to cutting of the telephone of everyone in the same municipal exchange.

Imagine if your telephone was cut off and replaced with a recorded message saying you had been arrested for child pornography – all because someone who lived five blacks away, and was on the same municipal exchange) had been arrested.

Or imagine if in order to arrest 5 people working in one office of a 20 story multi-tenant office building *everybody* who worked in that building – all 5,000 of them – was handcuffed and perp-walked out of the building while police officers told the waiting press that they were all arrested for child pornography.

Because that is what happened.

The Nimmer article recounts a case where one alleged perpetrator had three interconnected businesses, and the “innocent” business suffered along with the “guilty” ones because the seizure of *physical* material evidence overrode any other rights the “innocent” businesses might have had.

I feel that this case is inapplicable because in the mooo.com case, the businesses were not interconnected, the alleged perp had no interest in any of the 84,000 other sites, there was no physical seizure of evidence, and and and.

I just don’t see it.

Anonymous Coward says:

Re: Re: Re:2 Re:

I see that you’re focusing on the mooo.com seizure specifically. That one is a unique set of facts as far as the seizures go, and there certainly are better constitutional attacks in that one as opposed to the other seizures. I agree with you there.

The idea behind seizing the domain name is that control of that property is placed with the court. If we’re going to say that when a subdomain is unseizable, then that means control of the subdomain cannot be placed with the court. I think that’s an impermissible constraint. All an infringer would have to do to avoid ex parte seizure is set up shop as a subdomain.

I don’t know why ICE returned control of mooo.com. I suspect it was for political reasons and not legal ones. Perhaps someone will sue over that and we’ll see the courts resolve some of these issues.

Adam Wasserman (profile) says:

Re: Re: Re:3 Re:

I am having difficulty following your reasoning.

“The idea behind seizing the domain name is that control of that property is placed with the court.”

A domain name is not property any more than a phone number or a street address is property. Furthermore I get the feeling that you do not have a clear picture of how Freedns works and what their relationship is with the sites who use their sub-domains.

So I will make it clear:

Freedns runs a service that is like the phone book. Users sitting in front of a web browser type in a URL or click on a link and Windows (or whatever other OS you are using) send a special kind of request in the background that ends up at the Freedns server, which then tells your computer how to get to the actual web site by providing an IP address. That IP address is where the content of that site is located. Freedns does not host the content.

So the 84,000 sites using the Freedns second level domain of mooo.com were all located at different IP addresses, most of them on totally separate machines physically located all over the country – heck all over the word – and only a few of this machines had any connection to child porn other than the fact that were using the same “phone book” and were within the same “area code” (actually “municipal exchange” to be precise).

“If we’re going to say that when a subdomain is unseizable”

I do not say this. In fact I say the opposite: that ICE should have only cut off access to sub-domain, not the second level domain which is what they did.

If you believe that either of the two scenarios I outlined above (“Imagine if your telephone was cut off…” or “…if in order to arrest 5 people working in one office of a 20 story…”) are constitutional than you will believe that mooo.com also was.

If you believe that either of my examples demonstrated unconstitutional behavior, than you would also feel that the mooo.com seizure was improperly conducted – if you had a comprehensive understanding of how domain names work and what business Freedns was in.

The bottom line is this: agents of the US government may do what they will within the constraints of their best judgment.

And if in the course of exercising their best judgment they violate anyone’s constitutional rights, they will be held liable and accountable, for as I have pointed out in another thread: both the 7th Circuit Court and the Supreme Court have both clearly articulated that there is no such thing as guaranteed immunity for agents and officers of the US government.

Anonymous Coward says:

Re: Re: Re:4 Re:

If you believe that either of my examples demonstrated unconstitutional behavior, than you would also feel that the mooo.com seizure was improperly conducted – if you had a comprehensive understanding of how domain names work and what business Freedns was in.

I understand completely how freedns works. My opinion was formed with this knowledge in mind. As I’ve stated, I believe that the mooo.com seizure is different than the rest, and it has its own constitutional issues that the other seizures don’t. I don’t think that it’s necessarily unconstitutional, but I do think there are some good arguments that it is.

The bottom line is this: agents of the US government may do what they will within the constraints of their best judgment.

And if in the course of exercising their best judgment they violate anyone’s constitutional rights, they will be held liable and accountable, for as I have pointed out in another thread: both the 7th Circuit Court and the Supreme Court have both clearly articulated that there is no such thing as guaranteed immunity for agents and officers of the US government.

You haven’t shown me any reason to think that the government’s general immunity to defamation liability will give way in the mooo.com case. What does it take to pierce that immunity? I’m really not familiar with the FTCA.

Adam Wasserman (profile) says:

Re: Re: Re:5 Re:

So we essentially agree…

Like you, I make no claims of absolute certainty, I’m just here to try and keep the debate factual and accurate.

“You haven’t shown me any reason to think that the government’s general immunity to defamation liability will give way in the mooo.com case. What does it take to pierce that immunity? I’m really not familiar with the FTCA”

I don’t know that it will. I am far from competent enough to have a definite opinion.

The one thing I am mindful of though, is that we need to make a distinction between the government and its agents. I can’t remember the exact citation, but I know that there is case law that establishes that in some cases agents may be held liable in cases where the governments would not be.

Pushback (profile) says:

From DHS Homepage:”To secure the nation from the many threats we face. Our duties are wide-ranging, but our goal is clear – keeping America safe.”

From Wiki:
created in response to the September 11 attacks, and with the primary responsibilities of protecting the territory of the U.S. from terrorist attacks and responding to natural disasters.

From Ice Home Page:
ICE’s primary mission is to promote homeland security and public safety through the criminal and civil enforcement of federal laws governing border control, customs, trade, and immigration.

From Wiki:
**************”ICE is led by a director, who is appointed at the sub-Cabinet level by the President of the United States and confirmed by the Senate”**********************
(The director is appointed, chosen or selected by the Commander and Chief of the largest country in the world?)
“U.S. Immigration and Customs Enforcement was formed pursuant to the Homeland Security Act of 2002 following the events of September 11, 2001. “
————————————————————
Both of these groups were formed almost immediately after the largest terrorist attack that has ever happened on US soil in the entire history of the country. Their sites clearly imply in non-ambiguous terms they are here to be sure that terrorists NEVER EVER attack our country in that fashion again. They are directly linked to the President(leader) of one of the most powerful countries in the world.

We have in place well over 100 Government Organizations on a Federal and Local level whose job it is to investigate or arrest, “Bad Guys”

My question is simply:
WHY is ICE/DHS doing the jobs of local law enforcement? How do they justify this or rationalize it? Whether it is legal or illegal(a judge will decide) How can putting illegal movies or links which “might” be illegal represent an immediate threat to large pools of citizens like terrorism physical threats or violence can?

While I am interested in your opinion I would be more interested in “evidence supported opinion” or “facts”(it there a difference?”

I searched for over 20 min to see how DHS/ICE justifies this and found next to nothing. Can you help? 🙂

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