We've already covered how Puerto 80, the company that runs Rojadirecta, has challenged
the government's seizure of its domain. The arguments presented by the company focused on a few different aspects of the law, and, obviously, focused mainly on what's most likely to get the domain returned. That meant that, while it mentioned both, it didn't spend too much time
on two larger issues associated with the Rojadirecta seizures: (1) that it appears to violate the First Amendment's ban on "prior restraint" of speech and (2) that Rojadirecta was declared legal (twice) in Spain, and ignoring that sets a dangerous precedent.
Thankfully, the EFF
and Public Knowledge have filed amici briefs that dig into both of these issues in great detail. I've embedded the filing below, and it's worth reading, as it does a very detailed and well annotated and cited explanation for why such seizures, prior to any adversarial hearing, violate the First Amendment. The whole thing is worth reading, but here's a snippet:
The impact on speech resulting from domain-name seizure is far beyond what is necessary to further the government interest. The government alleges that links (located on pages accessible through Petitioner’s domain names) to infringing content -- i.e., pointers to content accessible elsewhere on the Internet -- constituted criminal copyright infringement.... By seizing Petitioner’s domain names, however, the government blocked access to all content contained on Petitioner’s site, including obviously non-infringing content, such as user-created forums, discussions, and technical tutorials....
This tactic, as discussed above in Section III, was dramatic and unprecedented. While the government may pursue actions that further important interests, “it must do so by narrowly drawn regulations designed to serve those interests without unnecessarily interfering with First Amendment freedoms.” Vill. of Schaumburg v. Citizens for a Better Env’t, 444 U.S. 620, 637 (1980) (citing Hynes v. Mayor & Council of Borough of Oradell, 425 U.S. 610, 620 (1976)). “Broad prophylactic rules in the area of free expression are suspect. Precision of regulation must be the touchstone . . . .” NAACP v. Button, 371 U.S. 415, 438 (1963) (citations omitted).
Separately, it digs into the larger issues related to the fact that the site was found to be legal in Spain, something that the challenge from Puerto 80 mentions, but does not spend much time on. Here, however, the amici filing points out that this presents a big legal problem for the US government in supporting these seizures. Again, the entire argument is worth reading, but a quick snippet:
Decisions of foreign courts are not binding on the U.S. judiciary; however, it is a “well-settled rule” that unless the findings offend fundamental standards of procedural fairness or public policy, foreign judgments are generally conclusive. See Telenor Mobile Commc’ns AS v. Storm LLC, 584 F.3d 396, 408 (2d Cir. 2009) (citing Ackermann v. Levine, 788 F.2d 830, 837 (2d Cir. 1986)); Cunard S.S. Co. v. Salen Reefer Servs. AB, 773 F.2d 452, 457 (2d Cir. 1985) (“comity will be granted to the decision or judgment of a foreign court if it is shown that the foreign court is a court of competent jurisdiction, and that the laws and public policy of the forum state and the rights of its residents will not be violated.” (emphasis added)). Cf. Clarkson Co., Ltd. v. Shaheen, 544 F.2d 624, 631 (2d Cir. 1976) (holding that “a foreign judgment may not be collaterally attacked ‘upon the mere assertion of the party that the judgment was erroneous in law or in fact’” and requiring “[c]lear and convincing evidence” to attack a foreign judgment) (internal citations omitted))....
In the case of Rojadirecta, that standard was not applied, much less met. There is no reason to believe the Spanish rulings were procedurally unsound or offensive to public policy. Indeed, on the limited facts available in the record, U.S. copyright law may have dictated the same outcome, at least in the context of criminal infringement.
Separately, it notes that the consequence of ignoring such foreign judgments may do serious harm to US interests abroad, as it will enable other countries to do the same thing to US citizens and companies.
The effect may be felt well beyond the commercial context. Simply put, if the United States courts allow — with no adversarial hearing and on a low legal standard — the seizure of foreign-based content that is lawful in the home country, then that will set an example for other countries to seek to seize U.S.-based speech that is perfectly lawful in this country. As one example, U.S.-based websites have provided a crucial safe haven for political speech, including speech that is critical of foreign governments, in part because U.S. law offers strong protections for political commentary. If such a website were seized by a foreign government (even though the content is hosted in the U.S.), that action would likely be subject to intense criticism, including disapproval by the U.S. government. Unfortunately, it would be all too easy for the foreign censor to cite to the circumstances of this case as reason to ignore such criticism. Once the United States goes down the path of seizing websites hosted around the world, we will be less able to complain when other countries turn around and do the same thing to speech hosted here.
The filing also notes the oddity of the US government not mentioning the Spanish rulings in its affidavit to seize the sites, which suggests one of two things: that the ICE/DOJ folks hid this rather important fact or that that they didn't bother doing even the most basic investigation to find that information out.