More Reasons Why Homeland Security Seizing Domain Names Is Unconstitutional

from the keep-up dept

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

So it's nice to see some lawyers jumping into the fray. Practicing attorney David Makarewicz has written up an explanation of 5 reasons why the domain seizures are likely to be unconstitutional. It's really quite a well-balanced piece, detailing arguments on both sides, before coming down clearly on the side of why these seizures violate the Constitution in multiple ways. You can head over to that link to read the details, but the short version is as follows:
  1. These seizures violate the due process clause of the Fifth Amendment. There are certainly arguments here, but Makarewicz breaks down in which areas and for what reasons seizures without a prior hearing are allowed, and explains why those rules should not apply here.
  2. The prior restraint argument. Seizing speech without a hearing violates the First Amendment. Here Makarewicz highlights why the arguments that say this is not prior restraint don't hold much water, and notes that, if allowed, such a ruling will almost certainly be abused for the purpose of political censorship.
  3. There was no reason for the seizures without a hearing first. As we've pointed out in the past, seizures are generally allowed to preserve evidence. That doesn't apply here, which makes the seizures that much more questionable.
  4. The high risk of wrongful seizure. Obviously, the 84,000 websites seized in the mooo.com case make that clear. While he notes that the government doesn't always have to be right, the Constitution "does require the Government to institute sufficient procedures that reasonably protect a personís freedom and property from a wrongful taking." Here, it's clearly failed.
  5. Finally, there is no immediate way for site owners to reclaim their domain. He notes that when there are exceptions to the First and Fifth Amendments, they're generally allowed, if there's immediate recourse. Here there was not.
It's a good read, and by a real lawyer. So I do wonder if our regular critics will similarly brush aside the concerns as not being worthy of consideration.

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  1. icon
    Paul (profile), 14 Mar 2011 @ 2:41pm

    Re:

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

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

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

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

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