Defending The Indefensible: Lawyers Who Love Loopholes Ignoring Serious Constitutional Issues In Domain Seizures

from the this-is-just-sad dept

One of the really sickening things in the debate over the seizures of domains by the US government without due process and with no regard to prior restraint is the way some pro-copyright lawyers have tried to wave off these rather significant concerns, highlighted by multiple lawyers, by focusing on quoting cases out of context and searching for legal loopholes to justify the seizures. Of course, if you dig into the actual case law, you find that the legal loopholes they highlight don’t actually apply in this situation.

However, I wanted to step back from that, and take a look at the bigger picture, rather than focus on the legal loopholes that the lawyers are tossing around gleefully.

And from the bigger picture, I can’t see how anyone who isn’t interested in “the game” of winning a legal argument can possibly justify these seizures from a common sense standpoint. The US is based on certain key principles, and while some can mock those of using phrases like “due process” and “free speech,” those aren’t joking concepts. They are the underpinnings of a free society, and both are clearly under attack by the crux of these domain seizures.

First, the due process claim: defenders of the seizures claim that “due process” exists because a magistrate judge rubber stamps an affidavit, no matter how many mistakes there are. Of course, if you look at this from a common sense standpoint, no one thinks that due process includes the government seizing your property and letting you sue them at some later date (months later) to get it back. Supporters will point to the history of government seizures, leaving out (conveniently!) the intent of such seizures. It’s always been about seizing evidence that might otherwise disappear. Yes, over the years some law enforcement folks have stretched this, but that doesn’t mean it makes sense to abuse it in this manner.

The key point here is that there is no justifiable reason why these domains had to be seized without first hearing from the domain holders. None. No one has offered up a justification for seizing them pre-hearing at all. And holding a hearing would allow the government to avoid colossal screw-ups like relying on flatly incorrect evidence from the RIAA or taking down 84,000 legitimate sites and accusing them of being involved in child porn.

This isn’t a minor issue. People in the US have been taught that we’re innocent until proven guilty. Would it really have made that big of a difference for the government to actually hold a trial before seizing the domain? The answer is no. I mean, it would have meant that the government had to actually make a real case, rather than use questionable evidence, but that’s why we have the concept of due process. It’s not supposed to be easy for the government to take property or lock people up. That’s kind of a key point in a free society.

On the free speech point, the First Amendment is pretty clear that Congress shall make no law abridging the freedom of speech. Of course, over the years, the courts have chipped away at this here and there, but when the government is seizing speech or even tools that are key to use in speech, most people recognize that this should involve a high level of scrutiny to avoid the obvious opportunity for abuse.


We’ve already seen governments in other countries use questionable copyright claims to stifle the speech of critics. And it’s not difficult to see how this could happen in the US as well — especially given the recent domain seizures. Considering the vast number of perfectly legal sites seized, how hard would it be for political operatives to target critical sites using a similar “copyright” claim? Not hard at all. And that’s why we protect our First Amendment rights quite strongly.

In fact, I’m troubled by the claims that seizing speech is fine because it’s “copyright infringement.” That ignores the fact that the speech we’re concerned about isn’t infringing speech at all, but it was also taken down due to these seizures. And, as in the due process discussion, there’s simply no justifiable reason for why the government could not have waited until a court actually determined what content was infringing (if anything) and targeted any takedown or seizure to that content.

No one tossing out these (generally incorrect) legal loophole arguments seems willing to address either issue. They hide behind misreadings of case law, but can’t defend the seizures to the man in the street who is extremely worried about the government blatantly censoring websites with no trial and no due process, while making frequent mistakes undermining the entire claims of the lawsuits. Perhaps there is an actual common sense justification for seizing domains without a trial first, but we haven’t seen anything other than misquoting caselaw. So, for those who continue to brush off the due process and free speech concerns, can you explain an actual common sense reason why there couldn’t have been an actual trial first?

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Comments on “Defending The Indefensible: Lawyers Who Love Loopholes Ignoring Serious Constitutional Issues In Domain Seizures”

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262 Comments
Anonymous Coward says:

America!
Do as we say, not as we do!
Congress shall make no law abridging the freedom of speech, unless someone willing to pay them enough complains!

How is it that an industry that makes billions and claims they are loosing trillions still pays next to no taxes into the system that is always being perverted to suit them?

Gwiz (profile) says:

Re: Re:

Every time you get on the “84,000 legitimate sites” bandwagon, the rest of your post sort of loses importance. It’s really hard to imagine you being very balanced in your views when you keep getting this concept wrong.

What actually is wrong with that? Yes, we know that they were all subdomains of moo.com. So what? They still are legitimate sites. And to the average internet user they are no different than a top level domain.

Anonymous Coward says:

Re: Re: Re:

For me, it is because a single site with 100,000 pages might be worth more than a company offering up sub-domains. In purely legal terms, there was only 1 domain, 1 site. How they decided to fill their domain is up to them.

Did you notice that Mike has never mentioned the number of pages, files, or content on any of the other sites. The 84,000 thing is an “outrage” number, a gollified way to try to make something sound way worse than it really is.

Matt (profile) says:

Re: Re: Re:3 Re:

Wait, what?! You have a building full of innocent people’s stuff, including their records and means of making a living. They played no role in the building owner’s (allegedly) nefarious activities. Neither the building nor the innocent people’s stuff is the product of the owner’s (alleged) misconduct. The innocent people will potentially lose huge amounts of money for every day that their customers cannot find them. You can seal the owner’s rooms in the building and stop his (alleged) misconduct without affecting anyone else in the building. Instead, you choose to seal the entire building, lock all of the doors and post a big sign on the building that says “everyone who worked or entered here was a child molester,” send all incoming phone lines to an answering service where an automated attendant answers and says, “I’m sorry, but the person you are trying to reach cannot come to the phone because he or she is a child molester and has been apprehended by law enforcement,” redirect the mail to an automated service that returns every message with a stamp reading, “Recipient is a child molester and is not entitled to receive mail,” and refuse to give the innocent people access to their information or businesses.

That’s reasonable? It does not even pass the sniff test for reasonability! In the real world, this clearly would be an unconstitutional taking without just compensation. It just as clearly would be libel or slander (depending on whether customers called or wrote,) but that would not be actionable because the government has not waived sovereign immunity for those torts.

Mike Markovich (profile) says:

Re: Re: Re:2 Re:

In the case of the mall, there is at least some reason to tie those stores together: they share an organization connection that may be relevant to the particulars of the (hypothetical) case. However, this linkage may not be relevant at all, depending on those same particulars. If the owner of one store in the mall simply fails to pay taxes, there is no reason to even investigate let alone shut down the other stores. Things would be different if (for some crazy reason) the mall insisted that some stores did not pay taxes, because there may be a larger pattern.

With 84,000 separate stores, even evidence that 83,000 of them didn’t pay taxes is not enough to shut down the remaining 1,000.

Hopefully this made sense!

Pitabred (profile) says:

Re: Re: Re: Re:

The problem is that people used those sub-domains for all kinds of things. I have a “subdomain” like was seized that I use to connect to my computers at home when I’m away. I’m sure many people run various game servers or have other hobbies that may not just be web pages, and you’re defending the right of the government to unilaterally stop all of those useful services with no evidence or trial?

Hell, any one of those subdomains could have had hundreds of thousands of pages. YOU DON’T KNOW. The way the DNS system works, those subdomains were all on different IPs, so yes, there were 84,000 people who had their connection to DNS cut off suddenly.

I don’t know if you’re playing Devil’s Advocate or just a myopic, uneducated asshole, but there is no defense for seizing the domain with no evidence that even the preponderance or even a significant fraction of the subdomains were participating in anything illegal, much less without a trial.

Ryan (profile) says:

Re: Re: Re: Re:

DNS is designed to designate other folks as in ‘control’ of sub-domains as you go down the tree. Thus moo.com. is one group, badstuff.moo.com. is a totally other group, that happens to have an A record that points to a server that answers for a http request for badstuff.moo.com. that Allegedly has Bad Stuff on it. Next you can have othersite.moo.com. which has it’s own A record that points elsewhere with completely different content from other folks. Heck it doesn’t even need to run a web server.

Frankly if siezing moo.com. makes sense, just THINK of how much Bad Stuff we can get rid of if we seize com. or even BETTER, if we seize . (the root zone) then ALL the bad stuff in the world goes away!

Unless of course people figure out that DNS is like the phone book, if you get rid of DNS all you do is make it hard to look up something you don’t know, but you can always look elsewhere or at something else.

Anonymous Coward says:

Re: Re: Re:2 Re:

Ryan, if I do a whois on mooo.com, I get an entry. If I do a whois on badstuff.mooo.com, I get nothing (other than perhaps the mooo.com entry, depending on automation).

mooo.com is as different from the root (.com) as badstuff.mooo.com is from mooo.com. Only mooo.com is actually a registered domain. Think of them as the landlord of a warehouse. If they choose to subdivide the warehouse into storage spaces, but fail to pay the property tax, the building is seized and all the storage people lose access. The sub-dividing of the space just doesn’t come into play.

If ICE has sized 84,000 seperate domains and shut down as a result 84,000 unique sites, we would have something to talk about. But really, it is just playing “on my look at the big number” to try to make a quickly corrected oversight into some sort of battle cry.

Anonymous Coward says:

Re: Re: Re:3 Re:

Stop.

You don’t know what you are talking about and the more you repeat it the dumber you sound. Domains are not like warehouses, they don’t have a “real world” equivalent. Your shitty analogies might sound good in your own ears but that doesn’t make them realistic representations of the technology.

Anonymous Coward says:

Re: Re: Re:5 Re:

Sorry, in this case I know exactly and precisely what I am talking about. You may not like it, but it is 100% solid and true. Ask Vint Cerf.

The thing is, I don’t have to ask other people because I have a computer science degree.

You are 100% wrong. URIs are a method of addressing information. On your computer a file might be located at the URI \dev0C$tempfile.txt or the same file might be accessed on the web at http://www.someaddress.comtempfile.txt which actually translates to \127.0.0.1tempfile.txt.

It doesn’t matter if moo.com is selling the someaddress portion of the address or the www portion of the address, either way they are selling a pointer.

proximity1 says:

Re: Re: Re:5 Re:

Anonymous Coward, Mar 22nd, 2011 @ 8:29pm

“Why can’t they be a lying moron?”

Think about it.

A liar may be a moron (on occasion), and a moron may lie (on occasion), but a moron may not “lie” about what he doesn’t understand to be false. And a liar may not be a “moron” with respect to his awareness that he’s being dishonest. In other words, no one is “accidently” dishonest. Volition is implied.

So, if it’s true that “A” is false, then it’s true about one who asserts “A” that, “Either [he has] no idea what [he is] talking about or [he is] being intentional(ly) dishonest in [his] arguments.

Anonymous Coward says:

Re: Re: Re:3 Re:

“Think of them as the landlord of a warehouse. If they choose to subdivide the warehouse into storage spaces, but fail to pay the property tax, the building is seized and all the storage people lose access.”

And that was because the owners (moo.com) were the child molesters in this case?

You fail. Your analogy fails even more.

Ryan (profile) says:

Re: Re: Re:3 Re:

Well first off, badstuff.moo.com. is what we like to call an example. It is not a valid subdomain of moo.com. Second, Whois is a great system that is closely tied to dns but it is not dns. Any subdomain in dns can numerous records, including NS records pointing you to a whole different server and authority for that record and below.

The example I used, ‘badstuff.moo.com.’ is a subdomain of ‘moo.com.’ which is a subdomain of ‘com.’ which is a subdomain of ‘.’, the Root zone. Everything to the left of a ‘.’ can be controlled by another organization with proper delegation. By your reasoning we ‘com.’ should / could be seized because there are bad subdomains of ‘com.’.

Lastly, NONE of this has anything to do with hosts that are found by A records in DNS. This seizure is like removing my phone book entry because I sell drugs. My home is still there, my phone is still there, my phone number is still there, you just took the listing out of the phone book.

Anonymous Coward says:

Re: Re: Re: Re:

Lets see you get accused by the government of being involved in ‘child porn’ and have that information available to anyone on the internet….

Then come back and tell us how this is ‘way worse than it sounds’… if you have any reputation/visitors/fans left (people tend to distance themselves from those ACCUSED of being involved in Child Porn, actual evidence or proof isn’t required. If someone says it, people will believe it, especially if it’s the government.

Paul L (profile) says:

Re: Re: Re: Re:

In purely legal terms, there was only 1 domain, 1 site. How they decided to fill their domain is up to them.

How do you figure this?

.com is a domain; A top level domain
domain.com is a domain; A sub-domain of .com
site.domain.com is a domain; A sub-domain of .domain.com

I’m not sure what “purely legal terms” you’re using to determine this is a single domain, but it certainly highlights the fact that those only versed in “legal terms” don’t understand the technology. That being said; if someone doesn’t understand how the domain name system works, they shouldn’t be green-lighting the seizure of 84,000 legitimate domains.

Dave (profile) says:

Re: 84,000 sites mistake doesn't matter?

How is he wrong? Everything I’ve seen, including from ICE, has said that due to their ability to get rubber stamped affidavits they replaced the message on 84000 sites with a message that said “These guys were involved with child porn”. It was later fixed, but would not have happened at all if there were an actual adversarial hearing that took place prior to the seizure.

Ron Rezendes (profile) says:

Re: Re: 84,000 sites mistake doesn't matter?

If you work with children in virtually any capacity, and one of those sub-domains was yours, you may be hard pressed to EVER find a job in your field again – that’s how harmful that simple little fabrication can be for a teacher/counselor/instructor/after school program worker/custodian/teacher’s aide…..

It is simply amazing that those who support these actions do not understand the irreparable harm that a simple notice on someones website/blog can be and all because they felt it was unnecessary to use “due process”.

Do you get it yet?

Anonymous Coward says:

it's a matter of perception

> can’t defend the seizures to the man in the street who is extremely worried

Problem is, the man on the street is NOT extremely worried about these seizures… he is more interested in finding a job and wondering what is on TV tonight. It is only eggheads like us that are worried.

Anonymous Coward says:

common sense reason for not having a trial first: Congress didn’t require it.

This in no way means that the seizures (and the underlying legal statutory authority) are constitutional. This is something for the courts to decide. You cannot fault the administration and enforcement agencies for using the tools provided to them by congress.

Meek Barbarian (profile) says:

Re: Re: Re:

Just a thought. If these seizures are found to be illegal, can we then seize these tools that these agencies used?

Wait, which tools?

The software and hardware? Or the idiots staffed by the government who keep screwing up?

I mean, sure, we could probably find some use for the software and hardware, but those other tools are about as useless as possible.

Matthew (profile) says:

Re: Re:

No. We can fault them for it. Everyone is responsible for their own actions. They didn’t have to do it at all, much less in the sloppy, ham-handed way they did.

If you do something wrong just because no one forced you to do the right thing, you are still wrong and you are still responsible for it. Look at the administration’s recent change with respect to DOMA – they very clearly understand this concept.

IP Lawyer says:

Re: Re:

IP Lawyer here.

First off, congress has virtually nothing to do with this. It’s a constitutional and judicial matter, and, in fact, runs straight into separation of powers.

Deprivation of property without due process is unconstitutional, and barring a constitutional amendment otherwise, congress can do fuck-all about this. They can pass seizure laws till they turn blue in the face, but courts should not uphold them without due process. The fifth amendment, in Pertinent Part:

nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

herodotus (profile) says:

Re: Re: Re:

“Deprivation of property without due process is unconstitutional, and barring a constitutional amendment otherwise, congress can do fuck-all about this.”

But what, exactly, is ‘due process’?

I’m serious, I’d like to know. It sounds like an extremely vague concept that can easily be redefined at will by a resourceful lawyer.

Anonymous Coward says:

Supporters will point to the history of government seizures, leaving out (conveniently!) the intent of such seizures. It’s always been about seizing evidence that might otherwise disappear. Yes, over the years some law enforcement folks have stretched this, but that doesn’t mean it makes sense to abuse it in this manner.

So your argument is that despite the fact that it’s the law, it shouldn’t be the law, so let’s not do it? That’s not very persuasive. At least you acknowledge THE FACT that reasons exist other than seizing evidence. Agree with it or not, but criminals’ tools get taken away upon a showing of probable cause. You take the tools so the criminals can’t continue to use them to commit further crimes. It quite a simple concept, and it’s hilarious that you think the law is somehow twisted because it allows for criminals’ tools to be taken away from them.

The key point here is that there is no justifiable reason why these domains had to be seized without first hearing from the domain holders. None. No one has offered up a justification for seizing them pre-hearing at all.

I’ve offered the same reason–the actual reason–for quite some time. You just don’t want to hear the truth. The reason is quite simple: if you take that tool away from the alleged criminal, that criminal can’t use that tool to hurt his victims any further. Your problem is that you don’t understand who’s the criminal and who’s the victim. We all know you think the defendant is the real victim.

It’s not supposed to be easy for the government to take property or lock people up.

People have had their property taken and been locked up upon a showing of probable cause to a judge since the founding of this nation. It’s exactly supposed to work like this.

On the free speech point, the First Amendment is pretty clear that Congress shall make no law abridging the freedom of speech. Of course, over the years, the courts have chipped away at this here and there, but when the government is seizing speech or even tools that are key to use in speech, most people recognize that this should involve a high level of scrutiny to avoid the obvious opportunity for abuse.

Not all speech is treated the same, and it doesn’t all get the special treatment. We all know you interpret the First Amendment literally. The “no law” part is not taken literally in the real world, though.

No one tossing out these (generally incorrect) legal loophole arguments seems willing to address either issue. They hide behind misreadings of case law, but can’t defend the seizures to the man in the street who is extremely worried about the government blatantly censoring websites with no trial and no due process, while making frequent mistakes undermining the entire claims of the lawsuits. Perhaps there is an actual common sense justification for seizing domains without a trial first, but we haven’t seen anything other than misquoting caselaw. So, for those who continue to brush off the due process and free speech concerns, can you explain an actual common sense reason why there couldn’t have been an actual trial first?

I’ve been saying it: You take the tools away from the criminal so he can’t use those tools to hurt more victims. The reason, I think, this is difficult for you to grasp is because you think piracy is OK.

Anonymous Coward says:

Re: Re: Re:

So the people whose rights are violated are not victims? Weird. I should think you wouldn’t like people violating your rights. Taking away a tool means that tool cannot be used to violate people’s rights. You seize the drug smuggler’s speed boat if you can. Even though he can buy another speed boat to smuggle more drugs, that does not mean you shouldn’t seize whatever you can. Would you prefer we just let criminals keep all of their tools?

Anonymous Coward says:

Re: Re: Re: Re:

You still don’t address the question in Mike’s post:

Why would a hearing prior to any of these seizures have been detrimental in any way?

And you just assume that someone’s copyrights were violated. A hearing or trial beforehand would have determined if that were truly the case and made things easier for ICE if found to be so by a court. Just because a rightsholder claims infringement does not necessarily mean that it has actually occurred – courts determine that, not the rightsholder, not the alleged infringer.

Anonymous Coward says:

Re: Re: Re:2 Re:

You still don’t address the question in Mike’s post:

Why would a hearing prior to any of these seizures have been detrimental in any way?

The detriment would have been that in the meantime, the tool would continue to be used to commit crimes.

And you just assume that someone’s copyrights were violated. A hearing or trial beforehand would have determined if that were truly the case and made things easier for ICE if found to be so by a court. Just because a rightsholder claims infringement does not necessarily mean that it has actually occurred – courts determine that, not the rightsholder, not the alleged infringer.

I don’t assume they are guilty. Probable cause is sufficient justification to take away the tools. Things aren’t only seizable after a trial on the merits. That’s not how it works. It’s worked this way for a long, long time.

Anonymous Coward says:

Re: Re: Re:4 Re:

A domain name is not a “tool used to commit a crime” any more than the address number on a house is.

The statute allows for the seizure of any property used to commit or facilitate the crime. The domain name is property used to commit and facilitate the crime. The domain name takes you to the website where the crime is committed. Take away that domain name, and no one is using it to commit any more crimes.

HothMonster says:

Re: Re: Re:5 Re:

Except you haven’t taken the tools, just the signpost to them. The servers were not taken so they just needed a new domain and the crime could continue to be perpetrated. This would stop the crime for about five minutes. (No you can keep the drug running boat but we are taking your registration and your map)

I think the bigger issue is how few of these sites were actually committing a crime. Yes probable cause allows you to seize “tool used to commit a crime” but if the only reason you have probable cause is evidence produced by an adverse party that is exceptionally weak probable cause. If ICE had done a thorough investigation instead of merely regurgitate claims by the industry I would have less of a problem with it.

Thankfully we don’t live in Mao’s China and your neighbor calling the cops and telling them you grow pot does not give them probable cause to get a search warrant. It may lead them to do an investigation and request a warrant if it is applicable. However in this case ICE requested the warrant based on unsubstantiated claims by the industry.

Now I realize some of the sites were doing illegal things and you can argue what happened is fair. BUT enough sites that were not infringing got pulled down that this is an issue. For example the music blog were the 4 reasons used to seize were provided by the industry and were legal. Also the 84,000 mooo sites. Is the process correct if tens of thousands people are getting injured in the process? I know if the cops accidentally seized 84,000 houses/or places of business of innocent people we would probably rethink their methods.

As far as the moooo sites people say well they were subdomains so because mooo had to be stopped they all came down, shit happens. It wasn’t mooo that was infringing it was it was one of the subs. So instead of pulling down the actual infringer they pulled the top level which brought down the infringer and 80,000+ people who did nothing wrong.

Gwiz (profile) says:

Re: Re: Re:3 Re:

In case anyone is interested in how forfeiture laws are being abused here a link with quite a few horror stories. They even mention the domain name seizures in there.

http://forfeiturereform.com/

Just so no one gets the wrong idea about me, I believe laws and law enforcement are needed in our society. I feel safer knowing that the cops are on the job. But, on the other hand, I also need to feel safe from abuses of power by law enforcement.

anon says:

Re: Re: Re: Re:

really? I’m not super-duper tech saavy, but last I checked any of these websites are still available if you know how to:
a: google
b: type in an ip address

so i’d have to agree with the label analogy, except the label wasn’t removed, it was replace with “CHILD PORNOGRAPHY WUZ HERE”.

:Lobo Santo (profile) says:

Re: Re:

“Supporters will point to the history of government seizures, leaving out (conveniently!) the intent of such seizures. It’s always been about seizing evidence that might otherwise disappear. Yes, over the years some law enforcement folks have stretched this, but that doesn’t mean it makes sense to abuse it in this manner.

So your argument is that despite the fact that it’s the law, it shouldn’t be the law, so let’s not do it? That’s not very persuasive. At least you acknowledge THE FACT that reasons exist other than seizing evidence. Agree with it or not, but criminals’ tools get taken away upon a showing of probable cause. You take the tools so the criminals can’t continue to use them to commit further crimes. It quite a simple concept, and it’s hilarious that you think the law is somehow twisted because it allows for criminals’ tools to be taken away from them.

The fact that we’re dealing with digital evidence should make apparent that such seizures are unnecessarily brutal–they are transparently done in serving masters other than ‘justice.’ If evidence was what they were after, a covert site-dump saved to read-only media would provide more than enough evidence about EXACTLY what the site was doing, with those who run the website being none the wiser until a subpoena is issued for court.

Hell, they could even do successive copies of the site…

On another note, who do you think you’re fooling? You are thus far an amazingly well spoken shill whose lies and spin are incredibly subtle, but your mask is slipping.

Anonymous Coward says:

Re: Re: Re:

The fact that we’re dealing with digital evidence should make apparent that such seizures are unnecessarily brutal–they are transparently done in serving masters other than ‘justice.’ If evidence was what they were after, a covert site-dump saved to read-only media would provide more than enough evidence about EXACTLY what the site was doing, with those who run the website being none the wiser until a subpoena is issued for court.

Hell, they could even do successive copies of the site…

The evidence has already been collected before the seizure occurs. Otherwise, that would be stupid. It’s weird that you think they didn’t collect the evidence first. That makes no sense.

On another note, who do you think you’re fooling? You are thus far an amazingly well spoken shill whose lies and spin are incredibly subtle, but your mask is slipping.

I’m paid to be here. It’s a conspiracy. You figured us out.

Bruce Ediger (profile) says:

Re: Re: Re:2 Re:

> Why do you continuously mislead the conversation in that manner?

I think it’s an attempt by some organization(s) with the rumored “persona management software” to put a big, fat, meme in the general public’s subconscious. It’s a lot like the “Drive Drunk – Go To Jail” tee vee ad campaign. The point of that campaign is to make all possible jurors see “DUI” as a black-or-white binary situation, without nuance. Any defense attorney doesn’t stand a chance of getting a jury to look at the facts if that campaign succeeds.

Similarly, F. Fud Bailey’s Coporate Overlords want nearly everyone to think of “copyright infringement” as theft, or worse, CHILD PRON. By constantly repeating the assertion in every possible circumstance, no matter how small or obscure, then nearly all of the American public will have been exposed to it, and will “just believe it”.

Anonymous Coward says:

Re: Re: Re:2 Re:

Repeating the argument doesn’t change the fact that no crime has been processed, no criminal charges filed, and no economic harm assessed. Why do you continuously mislead the conversation in that manner?

None of those are legally necessary to instigate a seizure and forfeiture, so why would it matter? By bringing up things that don’t matter in the analysis, you’re the one being misleading.

Jay says:

Re: Re: Re:3 Re:

“None of those are legally necessary to instigate a seizure and forfeiture, so why would it matter?”

Let me make sure I’ve gotten this straight…

A seizure is allowed to happen with no crime committed, NO CRIMINAL CHARGES FILED (save for Bryan and the channelsurf case), and nothing more than a magistrate judge’s ok.

BUT, the victim of this legally bullying tactic has no choice but to have their house raided, property seized, for no reason other than the stamp of a judge that they haven’t met.

Can you kindly cut the sophistry from your argument and answer the damn questions put forth? What’s incredibly frustrating is trying to get an answer from you when you want to lead on with an appeal to moralistic fallacy.

This isn’t a legal brief, it’s an argument where I’ve been VERY clear, and VERY succint with my argument. I’ve asked you TWO questions from earlier and I will put them here:

Who is being arrested in THIS country for CCI?

Further,the charge of CCI doesn’t explain ANY of the former takedowns from July or Nov, only Bryan’s from Jan, which is a dubious charge at best.

How have these seizures been through due process without any type of safeguard to the people involved? Why is it that ICE was allowed to take down 84,000 sites at the flick of a switch?

They are not irrelevant to the laws involved, they are the crux of the issue. If you can’t answer them, that’s fine but this means you have no reason talking as if you’re the only authority figure in regards to their legality.

Modplan (profile) says:

Re: Re: Re: Re:

Small Packages: Ex Parte Property Seizures under Rule 65

The provisions of federal Rule 65(b) are applicable to this relatively narrow but important band of cases involving copyrights, trademarks and trade secrets, in which ex parte relief is often essential if the case is not to become an exercise in futility.1 But Rule 65(b) with its companion requirements ?is no mere extract from a manual of procedural practice. It is a page from the book of liberty?2 and obtaining no-notice relief in such cases is hardly a foolproof process.

Under Rule 65(b) a temporary restraining order may be granted without notice only if (1) it clearly appears from specific facts shown by affidavit or verified complaint that immediate and irreparable injury will result to the applicant before the adverse party or its attorney can be heard in opposition; and (2) the applicant?s attorney certifies to the court in writing the reasons supporting his claim that notice should not be required.3 While the applicant must also make the case for preliminary injunctive relief based upon irreparable injury and a balance of the equities,4 the immediate and irreparable harm to which Rule 65(b) speaks is the harm that will follow if notice is given to the adverse party prior to the hearing on the restraining order itself

As one commentator explained:

The ex parte temporary restraining order is indispensable to the commencement of an action when it is the sole method of preserving a state of affairs in which the court can provide effective final relief. Immediate action is vital when imminent destruction of the disputed property, its removal beyond the confines of the state, or its sale to an innocent third party is threatened. In these situations, giving the defendant notice of the application for an injunction could result in an inability to provide any relief at all.5

But just because the law sets forth a procedure for obtaining ex parte relief in situations where the property in dispute must be preserved, the advocate should not presume such relief will be available in her case, even if it seems highly likely the property in question will disappear following notice. The court in American Can Co. v. Mansukhani put it this way:

?Our entire jurisprudence runs counter to the notion of court action taken before reasonable notice and an opportunity to be heard has been granted both sides of a dispute,? and the procedural hurdles of Rule 65 are intended to force both the movant and the court to act with great care in seeking and issuing an ex parte restraining order.6

While it may seem self-evident to the advocate that the property at issue will disappear, that assumption standing alone will probably not be enough to convince the court to do away with the defendant?s 5th Amendment right to due process.7

[…]

In 2001 the outdated Copyright Rules were abrogated by order of the Supreme Court and Federal Rule 65 was amended to include a new subdivision, Rule 65(f), covering copyright impoundment proceedings. With respect to the no-notice seizure issue,15 the practical result of placing copyright impoundment proceedings under the auspices of Rule 65 was to directly bring into play Rule 65(b), providing that a temporary restraining order may be granted without written or oral notice to the adverse party only if the applicant can clearly demonstrate by specific facts that immediate and irreparable injury will result if notice is given before the adverse party can be heard. The reporter?s notes to Rule 65(f) make it clear that ex parte copyright impoundment may be ordered under Rule 65(b) only if the applicant makes a strong showing of the reasons why notice is likely to defeat effective relief.16

[…]

Indicative of the court?s reluctance to grant ex parte relief is Paramount Pictures Corp. vs. Jane Doe 1 and Twentieth Century Fox Film Corp. vs. Jane Doe 2, 821 F. Supp. 82 (E.D.N.Y. 1993), in which the plaintiffs unsuccessfully sought ex parte seizure orders in companion copyright infringement cases involving videocassettes. The court held that even where it has been established that the property to be seized is of a type that can be readily concealed, disposed of, or destroyed the plaintiff nonetheless must allege specific facts based on actual knowledge supporting its right to seize the property without notice. The Paramount court rejected as conclusory the plaintiffs? argument that, because allegedly infringing videocassettes are small, lightweight and easily hidden or destroyed, film pirates will destroy or conceal them if apprised of a pending infringement action. In so holding the Paramount court held that the plaintiffs? theory was ?not backed up by any specifics about either the defendants in these actions or others.?17

Modplan (profile) says:

Re: Re: Re:3 Re:

It turns out to the best of my knowledge you are correct. I confused 506 for 503. However, much of the same principles in justifying an ex parte seizure would also apply here, particularly with issues of prior restraint and the lack of convincing argument ICE made to justify why the domains needed to be seized (the crime was not stopped, and seizing the domain to prevent potential future crime of others is essentially doing a Mystic Meg impression).

Anonymous Coward says:

Re: Re: Re:4 Re:

It turns out to the best of my knowledge you are correct. I confused 506 for 503. However, much of the same principles in justifying an ex parte seizure would also apply here, particularly with issues of prior restraint and the lack of convincing argument ICE made to justify why the domains needed to be seized (the crime was not stopped, and seizing the domain to prevent potential future crime of others is essentially doing a Mystic Meg impression).

But that’s just it–those “same principles in justifying an ex parte seizure” do not apply. It’s enough to demonstrate probable cause of the property’s use in the commission of a crime to a judge. You may not consider the seizures to be effective, but the fact remains that the seized domain names are no longer being used to commit crimes. That means they’re effective in the way that it matters.

Chosen Reject (profile) says:

Re: Re:

If you want to take away the tools of copyright infringement, taking away a domain name is about the most useless thing that could have been done. You’ve still left the alleged infringer with computers to do copying with and servers and internet access to transport those copies. All you’ve done is removed his PO Box. Not his address. And his ability to get another PO Box is not hampered.

Are you going to start justifying drug related seizures where the cops simply seize the alleged drug dealers socks and nothing else? Sure it’s an inconvenience to have no socks, but it doesn’t exactly make it impossible for him to continue dealing drugs.

Remember, the domain names themselves are not infringing. The content on the servers was what was alleged to be infringing on the copyrights. Did they take that away? No. Did they take their servers? No. Did they take their internet access? No. Did they shut off their power? No. Then what tool did they take away from them? Oh yeah, a domain name which can be had for a couple of bucks from the nearest registrar of choice.

So answer what tools they took away that stop the crime, or that even provide evidence of the crime allegedly committed.

Rekrul says:

Re: Re:

So your argument is that despite the fact that it’s the law, it shouldn’t be the law, so let’s not do it? That’s not very persuasive.

At one time, slavery was legal. Was that right?

Agree with it or not, but criminals’ tools get taken away upon a showing of probable cause. You take the tools so the criminals can’t continue to use them to commit further crimes. It quite a simple concept, and it’s hilarious that you think the law is somehow twisted because it allows for criminals’ tools to be taken away from them.

No, the law is twisted because asset forfeiture has been used to confiscate the property of completely innocent people. Have a large amount of cash on you when you’re stopped by the police? It must be drug money: Confiscated! Have a wild Marijuana plant growing on your property that you didn’t even know about? Obviously your home is being used for a drug operation: Confiscated!

In most cases, the person whose property is seized is never even charged with a crime, and getting it returned is virtually impossible, often costing more in legal fees than it’s worth.

Think I’m making this up? Just do a Google search for abuse of asset seizure laws.

People have had their property taken and been locked up upon a showing of probable cause to a judge since the founding of this nation. It’s exactly supposed to work like this.

Did you know that something like 90% of the paper money in circulation in the US has come into contact with drugs at some point? Did you know that drug-sniffing dogs can detect these faint drug traces even months later? Did you know that even though this is a KNOWN fact, police will happily use this as “probable cause” to confiscate your money, even if you just walked out of the bank after cashing your paycheck?

Matt (profile) says:

Re: Re:

There are plenty of ways to take away the criminal’s tools. Disregarding for a moment that shutting down DNS does not actually do so (it merely cuts down on dissemination, which may reduce his incentives for the criminal conduct,) and regardless of whether it is a proper action of government to seize domains on probable cause without process, here the government took away tools from people that it now admits were never even suspected of criminal activity.

The general rule is that the government has to have a legitimate purpose for every action it takes. When that action infringes any person’s (including a criminal’s) free speech rights, the government has to meet a higher threshold. Here, in order to impose a prior restraint on unobjectionable speech, the government would have to demonstrate that its actions were narrowly tailored (meaning the least restrictive alternative) to accomplishing a compelling government purpose. Wholesale domain seizures do not fit the bill. This is per se unconstitutional. That is a problem.

Anonymous Coward says:

Re: Re: Re:

There are plenty of ways to take away the criminal’s tools. Disregarding for a moment that shutting down DNS does not actually do so (it merely cuts down on dissemination, which may reduce his incentives for the criminal conduct,) and regardless of whether it is a proper action of government to seize domains on probable cause without process, here the government took away tools from people that it now admits were never even suspected of criminal activity.

To which case are you referring? Regardless, it is enough that it is property used to commit or facilitate crime. It matters not who owns it.

The general rule is that the government has to have a legitimate purpose for every action it takes. When that action infringes any person’s (including a criminal’s) free speech rights, the government has to meet a higher threshold. Here, in order to impose a prior restraint on unobjectionable speech, the government would have to demonstrate that its actions were narrowly tailored (meaning the least restrictive alternative) to accomplishing a compelling government purpose. Wholesale domain seizures do not fit the bill. This is per se unconstitutional. That is a problem.

There is no heightened scrutiny in criminal infringement (copyright or trademark) or child porn cases. You are making that up. That’s not what the law actually is.

proximity1 says:

Re:

RE: Anonymous Coward, Mar 22nd, 2011 @ 11:03am

“Not all speech is treated the same, and it doesn’t all get the special treatment. We all know you interpret the First Amendment literally. The “no law” part is not taken literally in the real world, though.”

I thought that the U.S. Constitution’s core preceps–and if the “Bill of Rights” aren’t that, then what are they?–were not only written in and for “the real world,” but were intended to endure through the long evolution of human affairs, were intended to serve as basic markers of, in this case, inviolable rights.

I also heard somewhere that, in law, words are supposed to be understood in their common everyday sense unless there is some truly exceptional and compelling reason not to do so, which would suggest to me that if the text reads “No law,” then the actual (and, yes, “real world” ) meaning is “no law”, “none”, period.

“I’ve offered the same reason–the actual reason–for quite some time. You just don’t want to hear the truth. The reason is quite simple: if you take that tool away from the alleged criminal, that criminal can’t use that tool to hurt his victims any further. Your problem is that you don’t understand who’s the criminal and who’s the victim. We all know you think the defendant is the real victim.”

Isn’t a “criminal” someone who has been convicted of a crime–via what Mike has referred to as due process? And, prior to conviction, isn’t the term “suspect” rather than “criminal”? I grant that people suspected of felonies which involve deadly arms carried on their person are typically subject to physical search (this used to be only allowed on what was a warrant for arrest, issued by a judge upon the request of the police prosecutors, or, on direct probable cause, which the authorities were under an obligation to demonstrate, but that was then, I suppose) but here, what are we dealing with? People suspected of felony committed with the use of deadly weapons? Do these seized domains rise to that? Or has everything simply sunk to this level?— a “criminal,” not a “suspect,” from the moment of falling under suspicion?

You don’t mention them specifically but there’s every reason to suspose that you’ve apparently also dispensed with certain other pillars of due process, most notably the (now-tattered) writ of habeas corpus, which I guess is too liable to be abused by these as-yet-unconvicted “criminals”.

These “tools” must remain available to “criminals” because, otherwise, “innocent people” (maybe a novel concept to you) who find themselves under legal compulsion won’t have them either:

the right to remain silent, i.e. to refuse to be compelled to incriminate or act as a witness against oneself

the right to counsel,

the right to bring a writ of habeas corpus, which in practical terms means the right to be seen by a duly constituted court and be heard by a judge in order to test the soundness of the legal grounds for one’s continued detention,

etc.

What you argue in favor of leaves us, in effect, having to submit to the unappealable retort of,

“Because the police said so, that’s why.”

When that becomes the rule of thumb, you’re going to find that sooner or later cities will burn; and that will indicate the measure of your amazing failure of responisibility to somethiing called justice.

Anonymous Coward says:

Re: Re: Re:

The fact is that many, many laws abridge our right to freedom of speech under the First Amendment. The right to freely express yourself is not absolute. It never has been. An example is defamation. You are not free to defame whomever you want without legal repercussions.

Due process is thrown around like it’s some magical thing that means domain names can’t be seized. Due process is a term of art, and in order to determine if the seizures violate due process, you have to look at what the current law is on due process in such seizures. As it now stands, the law allows for the seizure of tools of crime upon showing probable cause to a judge. A forfeiture proceeding is initiated, and notice is given to the owner of the property seized. This satisfies due process according to the law.

Mr. Smarta** says:

We have no rights.

That’s all a joke. We have no rights, no matter what country you’re in. It doesn’t matter if it’s America, Canada, Spain, Russia, Durkastan, or Bumsville Idaho. Freedom is an illusion that comes in little fragments we’re shown when we feel we need to see them. We don’t get to own anything. We don’t have the right to money, food, or oxygen. You own a house, it can be taken away from you in the name of ’eminent domain’. You own a website, it can be removed in the name of ‘copyright’. You want to start a business making something, ‘Sorry, that’s covered by eighty million patents.’. That computer or laptop you’re sitting in front of? Not yours, because some fed sitting behind a desk somewhere asked his buddy judge to take it from you. The only reason it’s still there is because they haven’t demanded it yet. Your stuff that you buy is actually ‘on loan’ to you until the government wants it.

Your lawsuit that you bring to the courts to fight it? Sorry, you lost the moment they took your stuff. And if by some miracle you’re found innocent or whatever… ‘Sorry, you’re stuff wound up in the toilet with fifteen pounds of crap on it. But you can have it back.’ Your freedom? ‘Sorry. We think you’re guilty, so now you sit in jail for months stripped naked because you might asphixiate yourself on your own skidmarked drawers.’ Freedom is an illusion.

Ron Rezendes (profile) says:

Cue the parade of trolls in 3...2...1...

Just once I’d like to see the copyright maximalists say something along the lines of: “They didn’t handle this properly at all. A quick simple trial would have nailed the offending sites properly. Unfortunately this was all handled incorrectly despite the best intentions to uphold the rights of the content producer.”

I could easily understand that kind of reasonable view from the other side but have NEVER been witness to it. I wonder why that is?

Anonymous Coward says:

Re: Cue the parade of trolls in 3...2...1...

A quick simple trial would have nailed the offending sites properly

Would that be quick and simple like Jammie Thomas? Internet time and real world time run at different speeds. 3 – 5 years of kicking this around courts, trying to figure out jurisidiction, hearing motions, perhaps issuing warrants for people outside of the country, going through discovery, depositions, perhaps executing some search warrants, and so on… by the time there is an answer most people would have forgotten the question.

I don’t know what world you like in Ron, but the real legal world just ain’t that fast.

Anonymous Coward says:

While I recognize that he is counsel for various industry groups having a stake in COICA, it is nevertheless interesting to read Mr. Abrams letter to Mr. Leahy presenting arguments why COICA is consistent with the First Amendment.

Mr. Abrams is a well known scholar and practitioner regarding the First Amendment, and was the counsel for the NYT in the matter of Sullivan v. New York Times (the “Pentagon Papers” case).

This is not to say that Mr. Abrams’ word is the “final word” on the subject, but only to note that he too, by your way of thinking, must be a lawyer who likewise engages in the exploitation of what you refer to as “loopholes”.

AJ says:

They are being punished before they are found guilty plain and simple. Their site is worthless, the visitors now believe they were involved in illegal activities, and they have lost their storefront to their customers. Whats the point of dishing out money to fight the gov at that point?

The Pirate Movie Sites reappeared shortly after the takedown, so the only people that really lost out in this case was the innocent.

http://gigaom.com/video/pirate-movie-sites-reappear-after-ice-takedown/

“For a domain name, even a short seizure effectively erases any value the asset has. Even if ultimately returned, it?s now worthless.”

“There?s no requirement for the government to explain the seizures are only temporary measures designed to safeguard property that may be evidence of crime or may be an asset used to commit it. Nor do they have to acknowledge that none of the owners of the domain names seized has been charged or convicted of any crime yet. “

http://techliberation.com/2010/11/29/domain-name-seizures-and-the-limits-of-civil-forfeiture/#

Throw your legal loop hole arguments around as you want, but all your doing is pissing off the innocent. The criminals will adapt, the innocent will revolt, no one wins these types of things.

Joe Publius (profile) says:

Re: Re: I understand now

I tried to resist posting this, but needless to say I failed.

GM: Okay Mr. representative, roll to save vs. lobbying for half damage to your integrity!

Mr. R: Do I get a bonus for my speech against special interests?

GM: No, as a matter of fact, you have to take a -5 penalty for hypocrisy, and another -5 penalty because the political contribution was for more than 1 million dollars.

Mr. R: Stupid game! *Rolls Dice*

proximity1 says:

no due process, no remedy (except "too little, too late")...

“The affidavit stated probable cause, and a judge signed off on it. If the affidavit was flawed, there is a remedy to challenge it.”

Very good. What’s the remedy? How is it applied?

You’ve already ruled out due process prior to seizure as being what I can only call apparently a nuisance in your manner of reasoning. So, what’s the “remedy” to challenge “it”? (a faulty finding of probable cause, that is.)

More irrelevant language in the “real world”?:

… “nor be deprived of life, liberty, or property, without due process of law;”

Anonymous Coward says:

Re: no due process, no remedy (except "too little, too late")...

Very good. What’s the remedy? How is it applied?

You’ve already ruled out due process prior to seizure as being what I can only call apparently a nuisance in your manner of reasoning. So, what’s the “remedy” to challenge “it”? (a faulty finding of probable cause, that is.)

More irrelevant language in the “real world”?:

… “nor be deprived of life, liberty, or property, without due process of law;”

The remedy is in court. The owners of the defendant property are given a chance to challenge the seizures at the forfeiture hearing.

Anonymous Coward says:

Re: the dispute isn't about the affidavit's 'flaws,' but the judge's finding that ...

probable cause was satisfied, right?

Rule 1. Judges are always correct in their findings of the presence probable cause.

Rule 2. In the event of a judge’s faulty finding that probable cause was present see Rule 1.

It is my opinion that the affidavit stated sufficient probable cause. If the owner of the defendant property wishes to argue otherwise, they have a chance to do so down the road. That’s how these things work. That’s how they’ve worked for years and years.

proximity1 says:

abridge speech-- because, well, we have to...

“The fact is that many, many laws abridge our right to freedom of speech under the First Amendment.”

Right. And the complaint is urged that this ought not be allowed to be the case.

To that, your retort, “But it is the case!”

Then what, some will ask, do we do about child molesters who organize and perpetrate their crimes via the use of internet sites–i.e. speech used to conspire to commit child molestation, etc. ?

My answer is, prosectute them for child molestation, or for conspiracy to commit acts of child molestation, etc. not for their statements, utterances , etc. about child molestation.

Anonymous Coward says:

Re: abridge speech-- because, well, we have to...

Right. And the complaint is urged that this ought not be allowed to be the case.

To that, your retort, “But it is the case!”

But that is how these things work. You won’t get very far in a court of law saying, “but, it shouldn’t work like this.” You would need to argue that the process is unconstitutional. Considering that the constitutionality of seizures and forfeitures has been challenged in a myriad of other cases, the arguments are probably going to fail.

proximity1 says:

common sense vs. what judges do, say, insist...

“Of course, if you look at this from a common sense standpoint, no one thinks that due process includes the government seizing your property and letting you sue them at some later date (months later) to get it back.”

Common sense. Of course! Oh, wait!

I have a hunch some do think just that– “due process includes the government seizing your property and letting you sue them at some later date (months later) to get it back.” [if you can]

Modplan (profile) says:

Re:

On no measure are they effective in the “way that it matters”. It is painfully obvious from the agents specific argument that the intention was for people to be unable to access the sites – which failed – and that the seizure would stop future crimes that hadn’t happened yet and weren’t likely to. Wendy Seltzer – the one who started chillingeffects.org – had brought up exactly the same point before the affadavit was public:

What I’d like to see instead is due process for the accused before domain names are seized and sites disrupted. I’d like to know that the magistrate judge saw an accurate affidavit, and reviewed it with enough expertise to distinguish the location of complained-of material and the responsibility the site’s owners bear for it: the difference between direct, contributory, vicarious, and inducement of copyright infringement (for any of which a site-owner might be held liable, in appropriate circumstances) and innocent or protected activity.

In the best case, the accused gets evidence of the case against him or her and the opportunity to challenge it. We tend to believe that the adversarial process, judgment after argument between the parties with the most direct interests in the matter, best and most fairly approaches the truth. These seizures, however, are conducted ex parte, with only the government agent presenting evidence supporting a seizure warrant. (We might ask why: a domain name cannot disappear or flee the jurisdiction if the accused is notified ? the companies running the .com, .net, and .org registries where these were seized have shown no inclination to move or disregard US court orders, while if the name stops resolving, that’s the same resolution ICE seeks by force.)

Your argument keeps moving back to vague assertions, and never deals with the facts of the case. This indicates a weak argument, in particular assuming outright that direct criminal copyright infringement occurred here (the fact that one site was a glorified search engine implies at best contributory infringement) based solely on the accusation (the affidavit certainly isn’t worth a damn as a basis for concluding this outright).

The only basis I’ve found in justifying any ex parte seizure has been that not granting the seizure would cause irreparable harm and that notification would allow for evidence to be destroyed. Neither of these are likely to have occurred, and in the latter, nor could it occur.

The seizures were not effective where it counts, as they weren’t even effective on the basis of the ICE agents own reasoning.

Also:

(B) there is probable cause to believe that the property is subject to forfeiture and?
(i) the seizure is made pursuant to a lawful arrest or search; or
(ii) another exception to the Fourth Amendment warrant requirement would apply; or
http://www.law.cornell.edu/uscode/18/981.html#b

Note the use of and, not or, along with probable cause referring to property being subject to forfeiture, not that probable cause is the standard for the seizure itself, unless there’s a difference in legalese from what to me seems like the plain meaning. The only exception to Fourth Amendment would precisely be the standards already referenced.

Anonymous Coward says:

Re:

Take channelsurfing.net for example. Do you think that McCarthy setting up a website which he frequently updated with the latest links to infringing material shows that his conduct was not willful? I doubt a jury would agree. They did show his commercial gain, by the way. Not that they needed to though, since that’s not a necessary element to criminal infringement.

Take torrent-finder.com. Same thing. The intent can be inferred from the conduct beyond just the copying itself, and they showed that the site was run for commercial gain in that case as well.

Anonymous Coward says:

Re:

Also:

(B) there is probable cause to believe that the property is subject to forfeiture and?
(i) the seizure is made pursuant to a lawful arrest or search; or
(ii) another exception to the Fourth Amendment warrant requirement would apply; or
http://www.law.cornell.edu/uscode/18/981.html#b

Note the use of and, not or, along with probable cause referring to property being subject to forfeiture, not that probable cause is the standard for the seizure itself, unless there’s a difference in legalese from what to me seems like the plain meaning. The only exception to Fourth Amendment would precisely be the standards already referenced.

Looking at the whole section, it shows your interpretation is faulty:

(b)
(1) Except as provided in section 985, any property subject to forfeiture to the United States under subsection (a) may be seized by the Attorney General and, in the case of property involved in a violation investigated by the Secretary of the Treasury or the United States Postal Service, the property may also be seized by the Secretary of the Treasury or the Postal Service, respectively.
(2) Seizures pursuant to this section shall be made pursuant to a warrant obtained in the same manner as provided for a search warrant under the Federal Rules of Criminal Procedure, except that a seizure may be made without a warrant if?
(A) a complaint for forfeiture has been filed in the United States district court and the court issued an arrest warrant in rem pursuant to the Supplemental Rules for Certain Admiralty and Maritime Claims;
(B) there is probable cause to believe that the property is subject to forfeiture and?
(i) the seizure is made pursuant to a lawful arrest or search; or
(ii) another exception to the Fourth Amendment warrant requirement would apply; or
(C) the property was lawfully seized by a State or local law enforcement agency and transferred to a Federal agency.

Note that those criteria you’re citing only apply if there is NO WARRANT. The preamble to section you quoted says, “a seizure may be made without a warrant if . . . .” Those criteria are not applicable here since there is a warrant.

IP Lawyer says:

Re:

There are many, many cases on what due process means, and it varies in context. Fundamentally, however, it means, basically, notice + opportunity to be heard. There has to be some form of notice to a person, if he is going to be deprived of life, liberty or property, and some sort of judicial hearing in which he has the chance to represent his interests.

Depending on the context, this process can vary highly. At gitmo, due process is basically the opportunity to have your habeas hearings denied. For a seizure of property, however, you are entitled to something on the level of a hearing or, depending on the circumstances, a full trial.

Anonymous Coward says:

Re:

I’m sorry, but no shutting down of protected speech is ever “merely incidental.” Claiming so is ridiculous.

Legally speaking, that is simply untrue. You’re the one being absolutely ridiculous on this point. It’s incidental because the protected speech was not the target of the seizure. The fact that you don’t acknowledge an understanding of this simple point makes you look quite silly.

The court in Arcara acknowledged that protected speech could be incidentally affected while enforcing other laws. The Court noted that in fact whenever anything is seized, there will almost always be some protected speech that is affected. The test isn’t whether protected speech is affected or not. The test is whether or not that affectation (which is almost certain to exist) is permissible.

You haven’t got a leg to stand on on this point. Care to cite legal authority to try and back up your argument? I doubt it.

Jay says:

Re:

“You are not free to defame whomever you want without legal repercussions.”

At least then, you can face your accuser. Also, there’s the idea that what you think is defame is nothing more than someone saying “your hair smells bad”.

At least then, there’s still common sense.

“Due process is thrown around like it’s some magical thing that means domain names can’t be seized. Due process is a term of art, and in order to determine if the seizures violate due process, you have to look at what the current law is on due process in such seizures. As it now stands, the law allows for the seizure of tools of crime upon showing probable cause to a judge. A forfeiture proceeding is initiated, and notice is given to the owner of the property seized. This satisfies due process according to the law.”

Please stop trying to be Terry Hart Jr…

If you’re really going to start this, I’m going to bring up civil rights and how fighting for those is akin to this belief that laws are absolute.

I’m also going to say that the Middle East’s movement in regards to the laws used to oppress people might be legal, but they sure as certain aren’t morally justified.

The current law has been shown to be pretty weak, especially since ICE has to use drug seizure laws to deal with copyright infringement.

Further, it’s funny how no asks the question of why a site can be taken down when no owner either can, nor will come forth.

Anonymous Coward says:

Re:

That’s not a standard. That’s an excuse. Based on that standard, the government could literally seize the entire internet. That’s obviously ridiculous.

No, Mike. It’s a standard. A legal standard. Property used to commit crimes can be seized upon a showing of probable cause to a judge. This seizure can be for the purpose of preventing further crimes from being committed using that property. That’s a legal standard that a court would apply. It’s not an excuse whatsoever.

And, no, you’re stupid FUD about seizing the internet makes no sense. The property to be seized has to be proximate enough to the crime to warrant its seizure. The criteria are delineated in the case law. If you took more time to read and UNDERSTAND Terry’s site, you might even know what those standards are. Obviously, you prefer to stay in the dark on these things.

You’re really scraping the bottom of the barrel now, aren’t you? You’ve moved past denial and anger. I think you’re on bargaining now. Congrats on moving to the next step. You’re halfway there.

Anonymous Coward says:

Re:

There are many, many cases on what due process means, and it varies in context. Fundamentally, however, it means, basically, notice + opportunity to be heard. There has to be some form of notice to a person, if he is going to be deprived of life, liberty or property, and some sort of judicial hearing in which he has the chance to represent his interests.

Depending on the context, this process can vary highly. At gitmo, due process is basically the opportunity to have your habeas hearings denied. For a seizure of property, however, you are entitled to something on the level of a hearing or, depending on the circumstances, a full trial.

Agreed 100%. What’s weird is that Mike’s “analysis” never includes an explanation of what ACTUALLY constitutes due process in seizures such as this. Instead it’s vagaries and FUD.

Anonymous Coward says:

Re:

Of course the criminals are only alleged criminals. Duh. There’s only been a showing of probable cause. No one’s been convicted, nor does anyone have to be. The seizures are not for the purpose of seizing evidence. They are for the purpose of preventing further crimes to committed using that tool.

Are the seizures deterring crime? We shall see, I suppose. In the meantime, such conjecture seems meaningless to me.

Anonymous Coward says:

Re:

You appear to have set up a standard that completely tosses out both free speech and due process.

Nope. They are accounted for, alive and well. That’s just FUD, Mike.

All you have to do is make a weak claim that there’s criminal infringement (even if there’s not, and even if you’re mistaken). Then you can stifle speech. Why is it okay? Because that “tool” is no longer being used to break the law? Does that violate free speech? Well, that’s “merely incidental” and the “right to free speech is not absolute.”

If the seizure of the tool also affects protected speech, then that effect is incidental. The First Amendment isn’t a shield for pirates.

Based on your thinking, the government can now censor at will. All they have to do is make a claim of criminal copyright infringement (which is quite easy, as we’ve seen). They don’t have to prove anything. And they can seize the entire internet and anyone’s computers. Anyone’s. After all, it stops “the crime” (which still isn’t defined) so it’s “working” and any stifling of free speech is “merely incidental.”

You love to jump to extremes and spread the FUD. The government can ALREADY make up any claim it wants and have people arrested. This is nothing new. Sometimes powers get abused. This is also nothing new. Nobody’s seizing the entire internet. You sound like a kook.

If that doesn’t scare you, you’re not paying attention. You’re justifying the rules that let the government censor whomever they want, or even take down the entire internet. If that’s what you went to law school for, you should demand your money back.

You haven’t brought up the law school thing in a while. That’s when I know you’re at the bottom of the barrel. You just sound like a crazy person at this point, talking about censoring the entire internet. No, Mike, they’re just going after your pirate friends. Of course you’re upset. You can try and couch your arguments as some kind of appeal to the Constitution, but it’s quite clear that your arguments are about policy and not the Constitution. If you want policy to change, look to Congress. Your FUD won’t work in the courts.

Anonymous Coward says:

Re:

A standard has limits. Yours has none. It’s not a standard. It’s an excuse for censorship. Defending it is unconscionable.

How is the standard limitless? Either the seizure is done within the limits of the law, or it’s not. Pretending like there is no legal standard that courts would apply in analyzing the legality of the seizures is ludicrous. You’re really desperate with these arguments. This one doesn’t pass the laugh test. The standards are clearly delineated in the case law.

Again, then anything can be seized. That’s clearly not the intent of the constitution.

Not anything can be seized. Only those things that fall within the standard. The standard is not as broad and all-encompassing as you pretend it to be. There are clear limits. It’s hilarious that you’re arguing these things.

That’s not the case with these seizures by any stretch of the imagination. Once again: no standard.

Are you really arguing that the domain name is not proximate enough to the crime to allow for its seizure? That’s a laughable claim. Courts have been seizing domain names since there have been domain names. If you think a court will agree that a domain name is NOT “property used to commit or facilitate” the infringement, you’re delusional. If you think they’re seizing too much, I just don’t see it.

I read Terry’s site all the time. His misquoting or quoting things out of context is not accurate. Some of his stuff last year was good. This year, it’s turned into pure FUD. Makes me wonder who he’s really working for now. The lack of disclosure on his site is kinda worrying, don’t you think?

You wonder “who he’s really working for”? LOL! Talk about FUD. He’s been systematically taking you down one peg at a time. He doesn’t even mention your name lately, but it’s clear that you’re his target. It’s been fun to watch alright–but at your expense.

Cute. Looks like you’re back to ad homs. Means I’m right.

I really do think you’re going through the stages of grief with these seizures. It’s not an ad hominem. I actually mean it.

Jay says:

Re:

100 sites taken down.

Faithbased?

TVShack – So is ICE going for a hat trick?

torrentfinder

dajaz1

Onsmash

Are you trying to be obtuse? I mean seriously? You name one person from an arrest recently and expect me to swallow that none of the other sites have moved on from US domains? Are you not really paying attention to the unintended consequences of the ICE’s actions?

It doesn’t matter about a few people being deterred from piracy. If anything, case history shows us exactly what more enforcement is going to do. Nothing.

Napster vs RIAA Napster goes bankrupt. Did people stop sharing files?

MGM vs Grokster Same question. We got an inducement charge for P2P. Again, filesharing has not stopped.

RIAA filesharing litigation suit – How has that turned out? So they go running to Uncle Sam to deal with their economic problem and you’re calling ME faith based?

Jay says:

Re:

You’re using that same faulty logic that impedes on your progress man. I worry for the absolutism of the lawyers in this country. They don’t see anything other than what they want to see and that’s a problem…

“If the seizure of the tool also affects protected speech, then that effect is incidental. The First Amendment isn’t a shield for pirates.”

Pirate, criminal… Everything but the accused party has no rights because the law says so. Obviously, being the second class citizen that they are, I guess we should make separate water fountains for pirates than others.

How about we make a 3/4 clause for the right of a pirate to vote? Or maybe, just maybe we should hose down those filthy pirates because they might infect us with scurvy?

You are dismissing people for no other reason than your own bias against them for nothing more than supposed economic harm. You don’t see them as needing rights of any kind because supposedly they’re harming artists, which is dubious at best. The right to face your accuser, the right to your property being judged accurately and fairly BEFORE it’s taken away, the right for you to look someone in the eye and have your say in the hearing. THOSE are the rights we’re discussing here. THESE are the things that ICE is not looking into that would change the rules to one that’s at least a little more balanced.

People acknowledge that copyright laws are for the middlemen. People know that this is basically useless because it damages the Constitutional Amendments we have.

The ones that apply –

1st – Right to free speech
4th – Unreasonable search and seizure
5th – Due Process clause (which the rubber stamp of Nagle or any other judge is again, NOT due process)
14th – Freedom of contracts (along with reiteration of Due Process)

The facts we know are thus:
Regarding the 1st, any blogs or forums lost speech and writing based on these take downs.

Regarding the 4th, ICE made no mention of actually seizing any of the accounts without due process (Hence, the mooo.com incident)

Regarding the 5th and 14th Amendments, the “probable cause” that you use as a lifeline again, is not survivable in the due process cause. Due process is the fact that a person can have their say in court. That’s something you continue to ignore in any capacity to sit here and talk about those derned pirates. Stop.

They have a right to have access to courts. They have a right to know what charges they are facing. They have a right to know who says their website is illegal BEFORE anything is taken down from them. If there IS a problem, these people have a right to know what it is that can be solved.

They don’t have a right to be badgered and harassed based on faulty logic and accusation. They don’t have a right to have the government come in to usurp their property through dubious means at the whim of a third party. This is the common sense that Mike is talking about.

This is what you continue to ignore.

Jay says:

the dispute isn't about the affidavit's 'flaws,' but the judge's finding that ...

Bullshit. If there’s a drug seizure, the person doesn’t have to wait six months for a complaint.

They also don’t have to show up in a jurisdiction that isn’t halfway across the world (or the country) because their site was taken down from the simple oversight of a US domain seizure.

Jay says:

Re:

One charge. ONE. That was Bryan McCarthy for Criminal Copyright Infringement.

The other complaints came out six Months after the takedowns. Terry is saying that the first round (July) came out within a reasonable timeframe (Six. Friggin. Months.).

He also doesn’t mention the very good fact that the courts closed soon after the takedowns occurred. So no adversarial hearing, no look into the case, no way to file a complaint. Terry won’t admit, but the situation is pretty FUBAR.

proximity1 says:

Re:

“They are for the purpose of preventing further crimes to committed using that tool.”

and,

“Are the seizures deterring crime? We shall see, I suppose. In the meantime, such conjecture seems meaningless to me.”

Dear “Anonymous JD with a Computer Science Degree,”

Surely, given the assertions you’ve made, the deterrant value is beside any point, isn’t it? Even if there was no deterrant value, you could still assert, as I guess you would, that seizures are justified and justifiable solely on the claim that “They are for the purpose of preventing further crimes to committed using that tool.”

People who argue against others’ objections which turn upon justice, fairness and common sense by pointing out that, in effect, “the law is the law is the law–don’t like it? then lump it,” don’t impress me.

Your arguments hold “the law” and “judges” who act in disregard of justice, fairness and common sense to ridicule. Lot’s of things were once “the law” and thus perfectly “legal” at the time. The real problems (which you won’t and don’t dare touch) come from the generally growing awareness that the system which might once have underpinned your claims and aargumentation with some semblance of legitimacy is now so thoroughly rotten that your assertions not only ring hollow, but they are more and more generally seen to ring hollow.

You’re still screeching into the microphone about the Great and Powerful Oz while Toto has already drawn back the curtain to expose fraud and fakery. Ultimately, “the law” and the manner in which it is applied have to find some minimum of acceptability in the eyes not of the closed circle of the legal profession but in the eyes of ordinary people who are subjected to it. When it fails that test, “the law” and all those who rely on nothing more than bald repetition of “but that’s the way the law is interpreted!” are going to reap the Furies’ whirlwind they sown.

In persuing the prosecution of alleged criminal activity, one can fall afoul of the mistake doing more real harm to society and to the law’s legitimacy than the actual criminal activity allegedly being perpetrated and prosecuted. And that seems to me to be, if not where we are already, where you’d readily take us. Though, for my part, the minimum of practical legitimacy in U.S. law and legal practice was–speaking of forfeitures–forfeited long ago. I see a society the basic foundations of which are now so completely rotten that it’s a marvel to me that things haven’t already collapsed.

Mark it: plenty of high-ranking U.S. government officials look on the popular uprisings in North Africa with undisguised dread because they see and see rightly that the ground on which their own legitimacy stands is hardly more sure and stable.

Remember, “If you give up the right to remain silent, your advanced degrees can and will be used against you by those whose faith and trust you’ve abused.”

The court you’re arguing before here, the court of popular opinion and common-sense, is the ultimate one, the one to which even the U.S. Supreme Court must appeal and with which its rulings must eventually find favor or, if not, then fail and be swept aside.

vivaelamor (profile) says:

Re:

‘What’s weird is that Mike’s “analysis” never includes an explanation of what ACTUALLY constitutes due process in seizures such as this.’

Again, adhering to the law and respecting individual rights pretty much sums it up. Exploiting legal loopholes is by its very nature a perversion of due process. The government is supposed to fix loopholes, not exploit them.

vivaelamor (profile) says:

Re:

“You love to jump to extremes and spread the FUD. The government can ALREADY make up any claim it wants and have people arrested. This is nothing new. Sometimes powers get abused. This is also nothing new. Nobody’s seizing the entire internet. You sound like a kook.”

You think HE sounds like a kook? You’re the one implying that due process is unimportant by pointing out that the government has unlimited power anyway. The whole point of due process is to keep that power in check.

It’s no wonder you post anonymously.

Modplan (profile) says:

Re:

The property is subject to seizure because any property used to commit or facilitate criminal copyright infringement is forfeitable under 18 U.S.C. 2323.

I never said otherwise, I was trying to parse the language in its difference between saying you can seize based entirely on probable cause, or that it was saying you can seize only if you believe the property to be subject to forfeiture.

Note that those criteria you’re citing only apply if there is NO WARRANT. The preamble to section you quoted says, “a seizure may be made without a warrant if . . . .” Those criteria are not applicable here since there is a warrant.

Then what would precisely apply in an instance with a warrent? Well, it seems these would, as far as I can tell:

(d)
(1) Real property may be seized prior to the entry of an order of forfeiture if?

(A) the Government notifies the court that it intends to seize the property before trial; and

(B) the court?

(i) issues a notice of application for warrant, causes the notice to be served on the property owner and posted on the property, and conducts a hearing in which the property owner has a meaningful opportunity to be heard; or

(ii) makes an ex parte determination that there is probable cause for the forfeiture and that there are exigent circumstances that permit the Government to seize the property without prior notice and an opportunity for the property owner to be heard.

(2) For purposes of paragraph (1)(B)(ii), to establish exigent circumstances, the Government shall show that less restrictive measures such as a lis pendens, restraining order, or bond would not suffice to protect the Government?s interests in preventing the sale, destruction, or continued unlawful use of the real property.

(e) If the court authorizes a seizure of real property under subsection (d)(1)(B)(ii), it shall conduct a prompt post-seizure hearing during which the property owner shall have an opportunity to contest the basis for the seizure.

(f) This section?
(1) applies only to civil forfeitures of real property and interests in real property;
(2) does not apply to forfeitures of the proceeds of the sale of such property or interests, or of money or other assets intended to be used to acquire such property or interests; and
(3) shall not affect the authority of the court to enter a restraining order relating to real property.

http://www.law.cornell.edu/uscode/html/uscode18/usc_sec_18_00000985—-000-.html

Those exigent circumstances would come back again to the standards mentioned previously, it would seem.

Anonymous Coward says:

Re:

I was trying to parse the language in its difference between saying you can seize based entirely on probable cause, or that it was saying you can seize only if you believe the property to be subject to forfeiture.

It’s a combination of the two: You can seize it because it’s property subject to seizure, and you can seize it because there is probable cause. Both are necessary for the seizure to occur.

Then what would precisely apply in an instance with a warrent? Well, it seems these would, as far as I can tell: . . .

“Real property” means real estate, so that section is for seizing someone’s land or house. It doesn’t apply here.

Modplan (profile) says:

Re:

I actually tried to find a straight answer on what domain names come under, and it seems it varies in a number of cases. Under some instances domain names are treated as property (including real property), in others they’re not.

http://www.dnforum.com/f26/help-please-2-thread-272351.html#post1355013

In the sex.com case the question was “can we treat a domain name as property for the purpose of a conversion claim” (conversion is the civil name for ‘theft’).

In other cases, such as the Umbro case in Virginia, the question was whether we can treat a domain name as property subject to seizure by a bankruptcy creditor. The VA Supreme Court was adamant that a domain name was an incident to a service contract, and thus was not property for that purpose.

http://www.dnforum.com/f26/help-please-2-thread-272351.html#post1355238

http://www.domainnamenews.com/legal-issues/are-domain-names-considered-property-or-not/2917

http://seo.pn/domain-names/is-your-domain-name-property-or-just-a-service/03/04/2010/chrismcelroy

So it’s not actually as straight forward as that.

Rekrul says:

Re:

Definitely not. So why do you make artists work for you for free? Like the slaves had to. Hmmm?

I’d like to buy legal copies of the following TV shows;

All Souls
Beyond Westworld
Close to Home
Committed
Dead Last
Harry and the Hendersons: The Series
Honey I Shrunk the Kids: The Series
Listen Up
Monsters
Night Visions
Special Unit 2
Still Standing
Strange Luck
Summerland
Thanks
Werewolf
Young Americans

Can you please point me to a legal source for these? I’m ready to give my money to the people who made these shows, just tell me where I can go to buy them.

Once you’ve helped me find the above, I have a whole bunch of movies I’ve been looking for…

Anonymous Coward says:

Re:

They aren’t sold and thus aren’t making anyone any money, yet you see someone – who wants to pay but ISN’T GIVEN THE CHANCE TO DO SO – as taking money out of someone’s pocket when they are able to obtain it…non-existent money gone for something no one’s selling anyway…you see that person that would pay but couldn’t as a criminal…

You know that’s stupid, right?

Dean Landolt (profile) says:

Re:

I’ll grant you that the AC you’re responding is so very wrong. Still, there are so many inaccuracies in your short explanation here that I don’t even know where to start. When you’re trying to argue from authority (“because I have a computer science degree”) you should probably be sure you’re right.

I’m not trying to be a pedant but almost everything you said here is technically inaccurate. I can believe this comment was moderated insightful — that’s a major hivemind fail.

hmm (profile) says:

well

For me, it is because a single site with 100,000 pages might be worth more than a company offering up sub-domains. In purely legal terms, there was only 1 domain, 1 site. How they decided to fill their domain is up to them.

Does this mean if ONE person in the US steals a sandwich from someone in Europe, then technically there is, in purely legal terms, one country, therefore one criminal and the EU should be able to take away/imprison every single person in the US? (oh yes and change the criminal record to read “guilty of child pornography”)?

Because thats exactly what taking down 84000 sites is…basically saying ONE of you did xxxxxxx therefore ALL of you using that country/city/PC server/domain shall be punished

Anonymous Coward says:

Re:

If it isn’t available anywhere, how has it been ripped and distributed via torrent or P2P?

Regardless, I get it. If you want it and it’s not available that sucks for you, and it may very well be a loss for the copyright owner (or maybe not). But that doesn’t justify taking another’s property. The point of copyright is that it gives the owner the right to distribute their work or not distribute their work as they desire. After all, it’s their work. The fact that you really, really want it doesn’t change anything. And, in my opinion, laws should protect the author’s choice (you know, the one who actually spent the time and effort creating something).

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