Why We Haven't Seen Any Lawsuits Filed Against The Government Over Domain Seizures: Justice Department Stalling

Legal Issues

from the running-scared? dept

We’ve been covering the various illegal domain seizures by the US government quite a bit, and with the latest round, I did want to loop back on one point: how come none of the seized sites have sued the government yet? We’ve heard a few times that the lack of lawsuits from those who have had their domains seized is “evidence” that they know the seizures were legal and that they would lose any court case. I began to wonder about this myself, and spent the last two weeks contacting people on all sides of these cases and found the answer to be exactly the opposite: it’s not the site holders who are scared. It’s the Justice Department, and they seem terrified to have one of these cases actually go to court.

What was really incredible was how everyone I spoke to involved in these cases (even though not at all connected with one another) had an identical story: they’d all love to take their cases to court, but they’re waiting for the government to actually get in touch with them. If it was just one site, there would be no story. But I spoke to people associated with many sites, and the story was nearly identical. To hear John Morton and other proponents of domain seizures talk about it, it’s “easy” for the owners of seized sites to protest and file suit against the government over the seized sites. Tragically, the reality has turned out to be quite different. Many of the sites were not even officially notified about the seizure until months later. Prior to that, they weren’t even told what the sites were accused of, let alone who was doing the accusations. You try responding to a government action against you completely blind. You don’t know who you’re suing or for what.

Even once notified, the “notification” often came in the form of an “offer” from the government to effectively give up any and all legal claims against the government. From there, the process sounds like something out of the movie Brazil. Any attempt to speak to the government has been met with either a total lack of response or directing people to someone else, who then won’t respond. Some of the people navigating this situation said it took months just to figure out who in the government they should be discussing the issue with — and once it was figured out, actually getting those individuals to respond to basic questions that are normally answered as a matter of course in discussions prior to any litigation, has been an exercise in futility.

Basically, the same story was heard over and over again: the Justice Department doesn’t seem to want these lawsuits to proceed and is stalling as much as possible and trying to avoid the legality of the seizures from being tested. At the same time, the site holders are eager to take these issues to court and are tremendously frustrated and distressed over the idea that the US government can simply seize domains without hearing, notice or effective process of appeal. However, nearly all of them expect that it will eventually end up in court (though one suggested that we might all be dead before a case moves forward at this rate).

Of course, I reached out to the government as well. I spoke to the press office of the part of the Justice Department involved in these cases, and beyond pointing me to the press releases they put out, they had no comment. I asked if there was an official process to protest domain seizures and was promised they’d get back to me. It’s been a week and no one has gotten back to me. Separately, I reached out to people in other parts of the government that are heavily involved in the seizures, and despite multiple people promising to respond with details of the process, or to pass on my question to others who might know the process, days have gone by with no further response.

So, apparently it’s “easy” to protest these seizures, but the people most involved in these seizures don’t want to even let us (or those who it matters most to!) know what the process is. After talking to so many people on this, it’s become abundantly clear that the lack of lawsuits has nothing to do with the strength of the government’s case, but the very opposite. Multiple site owners would like to file suit, but can’t. The government, who insists that it’s easy to protest their wholesale seizure of a domain without prior notice or hearing can’t even provide me a straight answer to what the process is to protest such a seizure. It’s almost as if the government never even expected anyone to want to protest such censorship and were totally caught off-guard by this.

But the real tragedy is for the folks who ran these sites. Even as many have found alternative homes, they’re frightened and disillusioned by the US government. They don’t feel they did anything wrong, and yet were blindly punished by the US government, declared as criminals with no clear recourse — and when they sought out information or details, have been met with the bureaucratic equivalent of a brick wall. We can all disagree over whether or not these domain seizures are legal or productive, but I would hope we can all agree that those who have had their domains seized should at least have a clear path to protest their innocence if they believe that they did not commit the crime Homeland Security, the Justice Department and a magistrate judge already declared them guilty of committing.

Filed Under: domain names, justice department, legality, seizures