Homeland Security's Domain Name Seizure May Stretch The Law Past The Breaking Point

from the taking-the-due-out-of-due-process dept

We had a bunch of questions concerning the legality of Homeland Security's seizure of domain names via its Immigration & Customs Enforcement (ICE) group. The whole thing seemed of extremely dubious legality. And it appears we're not the only ones to think so.

First, it's important to understand exactly what happened. Copycense points us to a useful analysis of how the seizures actually worked. Amazingly, it appears that Homeland Security contracted out the seizures to a private company, immixGroup IT Solutions, which set up the "seizedservers.com" domain that the seized domains now point to. The other bit of useful info is that the seizures appear to have been done directly by VeriSign at the top level domain level. VeriSign, of course, controls the .com TLD, and so Homeland Security appears to have just asked VeriSign to move the domains (with a court order, of course), and it did so.

So that takes care of the technical issues. What about the legal ones? Well, Larry Downes, who knows a thing or two about the legal issues here, has a great blog post detailing some of the serious constitutional questions raised by these seizures. He goes through the details of civil forfeiture law, noting that, while seizure is allowed both pre-trial and post-trial:
pre-trial seizure is premised on the idea that during the investigation and trial, prosecutors need to secure the items so that the defendant doesn’t destroy or hide it.
Clearly that's not an issue with domain seizures. Hell, since it was only the domains that were seized (not the servers and the content itself), there's not even anything to destroy. This is where things get very questionable. Downes notes that many legal scholars have been greatly worried about the whole concept of pre-trial seizures, noting that it appears to "reverse the presumption of innocence, forcing the property owner to prove the property is 'innocent' in some way." While it's true that the domain holders can step in and fight the seizure, as Downes points out, the length of time before any trial occurs makes the whole operation prohibitively costly. And even Homeland Security is acting as if the sites have already been proven guilty, despite the fact that the whole premise of such seizures is that no guilt has yet been established:
If prosecutors drag their heels on prosecution, the defendant gets "punished" anyway. So even if the defendant is never charged or is ultimately acquitted, there's nothing in the forfeiture statute that requires the government to make them whole for the losses suffered during the period when their property was held by the prosecution. The loss of the use of a car or boat, for example, may require the defendant to rent another while waiting for the wheels of justice to turn.

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

Clearly the prosecutors here understand that a pre-trial seizure is effectively a conviction. Consider the following quote from Immigration and Customs Enforcement Director John Morton, who said at a press conference today, "Counterfeiters are prowling in the back alleys of the Internet, masquerading, duping and stealing." Or consider the wording of the announcement placed on seized domain names... implying at the least that the sites were guilty of illegal acts.
The thing is, it appears that Morton and ICE have clearly gone pretty far in stretching civil forfeiture laws, way beyond their purpose and intention (and limitations), in order to seize these domain names. And it's only going to be a matter of time until some of the holders of these domain names step up and challenge the government on these activities, which appear to conflict with basic due process, let alone free speech issues (since websites are a form of speech, this goes beyond a straight property seizure as well). As Downes notes:
The farther prosecutors push the forfeiture statute, the bigger the risk that courts or Congress will someday step in to pull them back.
It seems like the time for Homeland Security/ICE to be "pulled back" is now. Congress almost certainly won't do it, but hopefully the courts will do the job.
Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

Filed Under: copyright, domain names, due process, homeland security, ice, john morton, seizures


Reader Comments

Subscribe: RSS

View by: Time | Thread


  1. icon
    Dark Helmet (profile), 30 Nov 2010 @ 7:56am

    Re: seizedservers.com

    Probably just a scare tactic. The SIG/INT technology the government likely has at their disposal would render the need for Google analytics irrelevant, other than to let dirty evil raporists know they're being watched....

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here



Subscribe to the Techdirt Daily newsletter




Comment Options:

  • Use markdown. Use plain text.
  • Remember name/email/url (set a cookie)

Follow Techdirt
Insider Shop - Show Your Support!

Advertisement
Report this ad  |  Hide Techdirt ads
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Chat
Advertisement
Report this ad  |  Hide Techdirt ads
Recent Stories
Advertisement
Report this ad  |  Hide Techdirt ads

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it
Close

Email This

This feature is only available to registered users. Register or sign in to use it.