More Reasons Why Homeland Security Seizing Domain Names Is Unconstitutional
from the keep-up dept
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:
- 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.
- 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.
- 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.
- The high risk of wrongful seizure. Obviously, the 84,000 websites seized in the mooo.com case make that clear. While he notes that the government doesn't always have to be right, the Constitution "does require the Government to institute sufficient procedures that reasonably protect a person’s freedom and property from a wrongful taking." Here, it's clearly failed.
- 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.