Rep. Lofgren Again Explains How And Why Domain Seizures Violate The Law

from the and-another-lawyer dept

We had just pointed to a lawyer explaining why the domain seizures by the government were likely to be unconstitutional. That was in response to some of our commenters who insist that anyone who actually understands the law would clearly see that such seizures are perfectly fine. Well, here's another lawyer who disagrees -- and she also happens to be a Congressional Representative, Zoe Lofgren. Obviously, we've covered her basic concerns with these seizures, and now she's done an interview with Ars Technica, where she goes into much more detail. She notes that this appears to be outside of ICE's mandate. That the reasons behind the seizures were too broad (such as in the seizure of Torrent-Finder, a search engine, which suggests the government could just seize Google if it wanted to).

Lofgren correctly points out that falling back on the legality of seizures for things like drugs does not apply, because this is a First Amendment issue, and then points out that it appears to be prior restraint:
Ars: So how did these seizures differ from, say, narcotics seizures in which some of the same issues about a non-adversarial hearing apply?

Rep. Lofgren: You're never going to have a free speech issue when it comes to a pile of cocaine.

Ars: The recording industry also objected to the First Amendment concerns you raised, saying that the First Amendment is "not a shield for illegal behavior."

Rep. Lofgren: They completely missed the point, and I would think intentionally so. This is prior restraint of speech, and you can't do that in America.
Nice to see yet another "lawyer" speaking out about this, and especially nice that it happens to be someone in Congress, who can hopefully get more attention on this concerning subject.

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  1. icon
    Karl (profile), 17 Mar 2011 @ 7:09pm

    Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re: Re:

    At yet, since the 80s, courts have routinely issued ex parte seizure orders in civil infringement cases.

    Are we talking about civil cases now? Because if so, then the "exigent circumstances" conditions must be met, and the seized items limited in scope. At least under the current seizure laws.

    If we're talking about civil seizures in criminal cases: I believe it was you that also posted the quotes from the Nimmer article in Entertainment Law Reporter. I'd like to quote (selectively, I'll admit) from that same article:
    Although, as Groucho learned to his peril, virtually any copyright infringement can give rise to criminal charges, few in fact actually do.

    The reason that emerges from our review of the statutory criminal offenses for copyright and trademark crimes is that, given their infrequency, some special circumstance must catch the prosecutor's eye. An ordinary infringement, albeit technically criminal, will be overlooked by the authorities in favor of civil remedies.

    Thus, the character of the defendant, his offense, and his history of similar offenses will determine what action is taken; if a general rule is needed, run-of-the-mill infringements will not be prosecuted, while egregious, willful, repeated, sophisticated violations will give rise to criminal charges.

    As we have already seen, the prosecutor needs more than a technical violation of a law on the books to spur him or her to action, and the goad that usually suffices is a violation that is egregious, willful, repeated, or sophisticated.

    Though the mere fact that he is an egregious and sophisticated violator probably will draw an indictment against the infringer, it cannot hurt to emphasize other noteworthy features. Thus, instead of merely recounting a target's act of infringing your client's motion picture copyright, you will meet a quicker response if you can (truthfully) inform the authorities that the target, besides making copies of your movies, also is engaged in selling drugs in high schools and helping his brother to ship high-tech weapons to Iran.

    Given all that: how many of the defendants were also publishing content that was not even allegedly infringing? Did the seizures also remove their ability to publish that non-infringing content? Were any First Amendment challenges raised in regards to that content? Were any seizures overturned on such grounds?

    It's not a rhetorical question, I'd really like to know. So far, I haven't found a single case that meets these criteria.

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