In order to seize the domain names without notice to the owners, the Government uses a procedure that permits it to bring an action directly against a piece of property used in the commission of a crime--in this case the domain name--rather than the owner. This type of action (called an "In Rem" forfeiture) is not new. In the past, the government has used In Rem actions for purposes such as an action against an automobile used to transport bootleg whiskey.
An In Rem action does not necessarily require the Government to wait until a court hears both sides and rules that the property has been used for illegal purposes and is subject to forfeiture. Instead, in many cases, the law is written so that all the Government has to do is to sign an affidavit that demonstrates probable cause for the forfeiture, which is signed by a magistrate judge and the Government can seize the property.
To carry out the In Our Sites program, ICE has treated these domains like any other instrument used for common theft and judges have signed off on their affidavits. The U.S. Attorney has publicly exclaimed that website operators like Brian McCarthy are hiding "behind the anonymity of the Internet to make a quick buck through what is little more than high-tech thievery."
The Government's view on the domain seizures seems to be overly simplistic and it ignores the fact that a domain is not the same as a gun or a boat used to transport narcotics. A domain is a unique combination of different types of property, including an address, a valuable asset, a brand and a medium for speech.
Any Government seizure of private property raises Constitutional questions. Here, I will outline the five most pressing Constitutional questions that have arisen because of the manner in which the Government has chosen to seize this unique type of property.
#1. The Government Seizes The Domains Without Prior Notice And Hearing.
On the other hand, supporters of the constitutionality of ICE's actions, such as Terry Hart, point out that the Supreme Court has permitted prior restraint of certain items, such as obscene materials or threats to national security. However, even these supporters recognize that these exceptions are premised on the Government ensuring a prompt judicial determination. Hart stated that "in effect, the Court recognizes the danger that too long of a temporary restraint on speech-related items can have the effect of a final restraint." While true, this analysis does not address the differences between obscene material and links to infringing material. Additionally, it would not save ICE's procedures because the Government has not, in fact, provided an immediate hearing on the seized domains.
|ICE Director John Morton|
Even if the types of sites that have been previously targeted, often consisting of links to other sites, were not a form of protected speech, there is still concern that endorsing these seizures would ultimately lead to the Government seizing the domains of sites expressing viewpoints it deems dangerous. ICE Director John Morton told Politico that the Government was not interested in going after bloggers or discussion boards. Morton said, "We're not about what is being said by anybody. We're about making sure that the intellectual property laws of the United States, which are clear, are enforced. When somebody spends hundreds of millions of dollars to develop the next movie or a billion dollars to develop the next heart medicine, the innovation and the enterprise that went into that effort is protected as the law provides. It's that simple."
#3. There Is No Concern That The Accused Will Flee With Their Domains.
Certain constitutional rights sometimes take a backseat to crucial practical considerations, such as the Government's concern that property involved in a crime will disappear if it is not immediately seized.
For example, the Supreme Court has allowed seizures without prior notice or hearing in a case involving the seizure of a yacht believed to be used to transport drugs. The Court was swayed by the fact that a yacht is the "sort [of property] that could be removed to another jurisdiction, destroyed, or concealed, if advance warning of confiscation were given." However, in a later case, the Court found such a seizure against real estate "which, by its very nature, can be neither moved nor concealed," to be unconstitutional.
A domain is not the same as real estate. Like real estate, a domain has an address and space within which the owner can build, but that space is not confined to finite borders or an address the way that real property is. Despite the differences, a domain is more like real estate than it is like a yacht. A domain can be sold, but it cannot be moved or concealed from the Government without defeating the purpose of having a domain in the first place.
#4. There Is An Unacceptable Risk Of Wrongful Seizure.
ICE also unwittingly made its critics' point last month when it mistakenly seized the domain names of 84,000 websites. The Government had falsely accused the sites of child pornography. This type of large-scale, disastrous mistake illustrates the constitutional deficiencies of the seizures.
To be clear, the Constitution does not demand that the Government always be right. For the Government to be able to effectively seek justice, falsely accused and falsely punished citizens are inevitable tragedies. However, the Constitution does require the Government to institute sufficient procedures that reasonably protect a person's freedom and property from a wrongful taking.
In many ways, the whole point of due process is to protect citizens from wrongful Government action. The Supreme Court has explained that the right to notice and a hearing prior to a government seizure is for the purpose of enabling an individual "to protect his use and possession of property from arbitrary encroachment-to minimize substantively unfair or mistaken deprivations of property."
Supporters of the ICE seizures will point to the fact that, despite the lack of notice and hearing, a seizure cannot occur without a judge finding that the Government's affidavit demonstrates probable cause. However, critics get no comfort from the fact that ICE cannot kick down your virtual door without a judge's sign off. Last week, during a House Judiciary Subcommittee on Intellectual Property, Competition, and the Internet, California Congresswoman Zoe Lofgren grilled the Obama administration's Intellectual Property Czar Victoria Espinel about the Constitutional shortcomings of the ICE domain seizures. Espinel attempted to argue that a judge's sign off amounted to due process. Lofgren tersely countered by saying "With all due respect, judges sign a lot of things."
See the exchange and Lofgren's full line of questioning in the video below: