Once Again, Why Homeland Security's Domain Name Seizures Are Almost Certainly Not Legal

from the once-more,-with-feeling dept

Earlier this month, in discussing some of the Homeland Security/ICE domain seizures, Karl put together an excellent comment, going through the legal analysis as to why the domain seizures were almost certainly not legal. Karl is not a lawyer, so I sent the comment to a series of lawyers I know who are very much on top of First Amendment issues, and they came back saying that his post was accurate, so I asked him to turn it into a full post, and here it is. With COICA being brought back, the timing is particularly appropriate.

These seizures are the very definition of prior restraint.

The activities that these sites are doing has never been considered criminal infringement. Remember that "evidence of reproduction or distribution of a copyrighted work, by itself, shall not be sufficient to establish willful infringement of a copyright." (17 U.S.C. 506(a)(2)) The state has not met their burden of showing that criminal activity occurred at all.

Moreover, it's pretty hard to claim "willful infringement" when a site has been declared completely legal under its own country's laws -- as is the case with Rojadirecta. If it's infringing, it's at most "innocent infringement," which is in no way a criminal act.

Furthermore, none of these sites are "primary" infringers. To be criminal, they must be considered an accomplice, and that requires much, much more proof than "contributory" or "vicarious" infringement does in tort cases. You must share the primary's actus reus and mens rea -- in layman's terms, you had to actively, intentionally, and directly participate, and moreover you had to know the act was criminal. It's amazingly obvious that this doesn't apply to many of these websites.

Under 17 U.S.C. 512's "safe harbors" provisions, if the sites followed the rules laid out therein, they are not liable for infringement at all, and the only relief available is laid out in 512(j). Nothing in 17 U.S.C. 506 takes those safe harbors away. Even if you wrongly believe it did, obeying the law would (once again) make you an "innocent infringer" at most, thus ineligible for criminal infringement under 506. Yet there was not even an attempt to show that the sites did not follow those rules. And apparently many did.

These seizures were also done ex parte, meaning that the defendants were not given prior notice, and were not given a chance to contest the seizures in a pre-seizure hearing. Nor, for that matter, were they given that chance after the seizures occured.

Fort Wayne Books v. Indiana makes it very clear that an ex parte seizure of potentially protected speech, with the intent to take material out of circulation, is prior restraint:
While a single copy of a book or film may be seized and retained for evidentiary purposes based on a finding of probable cause, books or films may not be taken out of circulation completely until there has been a determination of obscenity after an adversary hearing. The risk of prior restraint, which is the underlying basis for the special Fourth Amendment protection accorded searches for and seizures of First Amendment materials, renders invalid the pretrial seizure here. Even assuming that petitioner's bookstore and its contents are forfeitable when it is proved that they were used in, or derived from, a pattern of violations of the state obscenity laws, the seizure was unconstitutional. Probable cause to believe that there are valid grounds for seizure is insufficient to interrupt the sale of presumptively protected books and films.

Note that even taking the offending material itself out of circulation is prior restraint. These seizures went beyond that, and attempted to take entire websites out of circulation, non-infringing speech and all.

Some rebut with Heller v. New York, but nothing in Heller contradicts Fort Wayne:
A copy of the film was temporarily detained in order to preserve it as evidence. There has been no showing that the seizure of a copy of the film precluded its continued exhibition. Nor, in this case, did temporary restraint in itself "become a form of censorship," even making the doubtful assumption that no other copies of the film existed. [Emphasis in original.]

In other words, Heller only applies when you seize a copy of the work, you do it to preserve it as evidence, and it does not prevent public access to the work itself.

Moreover, Heller quotes United States v. Thirty-seven Photographs, which lays out three requirements for ex parte seizures:
(1) there must be assurance, 'by statute or authoritative judicial construction, that the censor will, within a specified brief period, either issue a license or go to court to restrain showing the film'; (2) '[a]ny restraint imposed in advance of a final judicial determination on the merits must similarly be limited to preservation of the status quo for the shortest fixed period compatible with sound judicial resolution'; and (3) 'the procedure must also assure a prompt final judicial decision' to minimize the impact of possibly erroneous administrative action. [Emphasis mine.]

These seizures fail every single one of those requirements. Those requirements were put in place "so that administrative delay does not in itself become a form of censorship." This is exactly what is happening here. Forfeiture proceedings for the first round of seizures were only initiated six months after the seizures occurred. The majority of sites still have not had a chance to contest them, and some have only recently been contacted by the government, months after the domains were seized.

Others may rebut with Arcara v. Cloud Books, in which an adult bookstore was closed down because of prostitution occuring on its premises. The usual claim is that "the First Amendment is no shield against criminal activity." But Arcara was only constitutional because "the sexual activity carried on in this case manifests absolutely no element of protected expression." Furthermore, "We have also applied First Amendment scrutiny to some statutes which, although directed at activity with no expressive component, impose a disproportionate burden upon those engaged in protected First Amendment activities."

Copyright infringement does, in fact, have "an element of protected expression" -- that is, a First Amendment defense can be raised (it need not be raised successfully). For that reason alone, Arcara does not apply. But even if the activity was not itself protected, the mere fact that it imposes a "disproportionate burden" upon free expression, disqualifies it from Arcara exemptions. Arcara absolutely, positively does not apply to these seizures.

In case you're wondering -- no, obscenity is not any more "presumptively protected" than copyright infringement is. (Hint: child pornography is a subset of "obscenity.") The same seizure rules (18 U.S.C. 46) apply to both; First Amendment challenges can be raised to both; obscenity, unlike infringement, is always a criminal offense; and the punishment for obscenity is about the same as for criminal infringement. (It's all in 18 U.S.C. 71.)

It's also a dodge to claim that domain names are not "presumptively protected speech." First of all, that's not true. Name.Space v. Network Solutions ruled that general top-level domains (just the .com, .net, etc parts) are not protected, solely because they cannot possibly be expressive. When the domain name can possibly be expressive -- such as when it includes the full creative URL -- it is presumptively protected speech, and First Amendment concerns apply. (See: every single "sucks site" case, and the one about Glenn Beck raping and murdering a young girl in 1990.)

But it's even more of a dodge because the domain names are not even allegedly infringing. They were seized solely to prevent the public from accessing the websites themselves. So the TLDs' status as "protected" is completely immaterial; it only matters whether the websites themselves are possibly protected expression.

And, of course, they are. The majority of the speech on some sites (forums, blog posts, comments, etc) is absolutely, 100% protected speech.

Now, about those seizure laws. 17 U.S.C. 506(b) references 18 U.S.C. 2323, which allows the seizing of any "article, the making or trafficking of which" is criminal infringement. Compare this with the ennumerated articles that can be impounded from 17 U.S.C. 503: "all copies or phonorecords," "all plates, molds, matrices, masters, tapes, film negatives, or other articles," and "records documenting the manufacture, sale, or receipt." These laws were clearly to be used for counterfeit goods, not file sharing.

According to 18 U.S.C. 2323(a)(2), the actual procedures for criminal seizure are in 18 U.S.C. 46. There are three sections dealing with civil forfeiture, none of which seem particularly appropriate. It seems that judicial forfeiture is covered exclusively in 18 U.S.C. 985. 985(d) states:ates:
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. [Emphasis mine.]

In other words, even with counterfeit goods, you're supposed to allow an adversarial hearing before seizing anything. An ex parte seizure order is the "nuclear option," to be used only when other methods are insufficient. The affidavits claim that these were indeed "exigent circumstances," but that claim is completely laughable on its face -- especially since the sites were operational for years at the same domain name, without risk of "destruction" or "sale," and the seizures did not preserve (or even help gather) any evidence whatsoever. And no, "continued unlawful use" is not an "exigent circumstance" when that "use" involves potentially protected expression, or, for that matter, when the use is not necessarily unlawful in the first place.

...Now, I'm not a lawyer, and I'm only repeating what I've been able to dig up. You can possibly disagree with some of the above. But in order for these seizures to be legal, you have to disagree with all of it. I'm sure some here will try (and many more will just call me a "freetard" or "pro-piracy" or "LOL!" at me). But no matter how you slice it, the legality of these seizures is not obvious. It's not even likely.

The more I read the law, the more convinced I become that the seizures were a repulsive abuse of power. ICE did this deliberately to route around safe harbors and the First Amendment. They had no intent of filing criminal charges and were hoping the domain owners would be scared into silence. It is prior restraint, and it is censorship, plain and simple.

Filed Under: censorship, homeland security, ice, legality, seizures

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  1. identicon
    Paul Keating, 17 Feb 2011 @ 3:49am


    "Prior restraint does not apply, as nobody is stopping the website owners from continuing business. Their servers are not taken, their products are not locked up."

    I don't think you are correct. When the government interferes with a method of communication it is interfering with the speech itself. This was settled back in the day when courts were dealing with public gatherings and passing out pamphlets. The government's argument then was that they were not banning the right to speak but rather only the right to communicate in the way undertaken. The courts in virtually all instances sided against the government.

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