A month ago, as many readers are aware, the US federal government seized a number of domain names for sites engaged in counterfeiting and infringement. The seizures were applauded by many working in the creative industries.
In my previous post on the subject, I responded to criticisms that the seizures violate due process (they don’t) and the First Amendment (they don’t).
A new round of criticisms have sprung up recently when a copy of the seizure warrant for several of the domain names — specifically, those alleged to be facilitating copyright infringement as opposed to counterfeiting — appeared online. You can see the warrant and affidavit here.
The criticisms have been spearheaded primarily by Techdirt, where a series of posts have alleged “technical and legal errors” in the warrant and affidavit. 1See Homeland Security Presents ‘Evidence’ for Domain Seizures; Proves it Knows Little About the Internet — Or the Law; Full Homeland Security Affidavit to Seize Domains Riddled With Technical and Legal Errors; More and Bigger Mistakes Discovered in Homeland Security’s Domain Seizures.
Are there errors in the affidavit? If so, do they even matter? The answer is no. The confusion comes from misunderstanding the nature and purpose of warrants and the meaning of “probable cause.”
A seizure of property for a forfeiture proceeding is very much like an arrest of a person for a criminal trial. The trial or forfeiture proceeding is where guilt or innocence is determined. All that is needed for a seizure or arrest is some basis for starting a trial or forfeiture proceeding against the person or property.
In the US, the Fourth Amendment establishes that basis as “probable cause.” Probable cause does not mean prima facie evidence of guilt — evidence that, as the Supreme Court said over 200 years ago, “would justify condemnation.” 2Locke v. United States, 11 US 339, 348 (1813). Instead, it means only that it is probable that a crime has been committed. Probable cause requires only a “reasonable ground for belief of guilt.”
Most often, probable cause is established by a warrant. The investigating officer writes up an affidavit describing the facts and circumstances that lead him to believe a crime has been committed and submits it to a neutral judge. The judge reviews the warrant and signs off on it if satisfied that probable cause has been established.
Recognizing the distinction between the standard of probable cause and the standard required to prove guilt is important to seeing why the criticisms of this warrant are baseless.
In 1949, the Supreme Court explained the distinction:
Guilt in a criminal case must be proved beyond a reasonable doubt and by evidence confined to that which long experience in the common-law tradition, to some extent embodied in the Constitution, has crystallized into rules of evidence consistent with that standard. These rules are historically grounded rights of our system, developed to safeguard men from dubious and unjust convictions, with resulting forfeitures of life, liberty and property.
However, if those standards were to be made applicable in determining probable cause for an arrest or for search and seizure, more especially in cases such as this involving moving vehicles used in the commission of crime, few indeed would be the situations in which an officer, charged with protecting the public interest by enforcing the law, could take effective action toward that end. Those standards have seldom been so applied.
In dealing with probable cause, however, as the very name implies, we deal with probabilities. These are not technical; they are the factual and practical considerations of everyday life on which reasonable and prudent men, not legal technicians, act. The standard of proof is accordingly correlative to what must be proved. 3Brinegar v. United States, 338 US 160, 174-76 (1949).
The Court could not be more clear on this last point. It has reiterated many times that probable cause is a preliminary and tentative determination, the affidavits accompanying warrants need not be “ironclad” or airtight, and magistrates should use common sense when deciding whether to issue a warrant, not focus on hypertechnicalities. 4See Brinegar; Spinelli v. US, 393 US 410, 419 (1969); Beck v. Ohio, 379 U. S. 89, 96 (1964); McCray v. Illinois, 386 U. S. 300, 311 (1967); United States v. Ventresca, 380 U. S. 102, 108 (1965); Barber v. Page, 390 U.S. 719, 725(1968).
The Court’s reasoning for giving warrants such leeway is based on the realities of law enforcement. As it said in US v. Ventresca (1965):
[T]he Fourth Amendment’s commands, like all constitutional requirements, are practical and not abstract. If the teachings of the Court’s cases are to be followed and the constitutional policy served, affidavits for search warrants, such as the one involved here, must be tested and interpreted by magistrates and courts in a commonsense and realistic fashion. They are normally drafted by nonlawyers in the midst and haste of a criminal investigation. Technical requirements of elaborate specificity once exacted under common law pleadings have no proper place in this area. A grudging or negative attitude by reviewing courts toward warrants will tend to discourage police officers from submitting their evidence to a judicial officer before acting. 5380 US 102, 108 (1965).
Sixteen years earlier, the Court said this common-sense approach that favors warrants but leaves room for reasonable mistakes properly balances the constitutional rights of individuals with the necessities of law enforcement:
These long-prevailing standards seek to safeguard citizens from rash and unreasonable interferences with privacy and from unfounded charges of crime. They also seek to give fair leeway for enforcing the law in the community’s protection. Because many situations which confront officers in the course of executing their duties are more or less ambiguous, room must be allowed for some mistakes on their part. But the mistakes must be those of reasonable men, acting on facts leading sensibly to their conclusions of probability. The rule of probable cause is a practical, nontechnical conception affording the best compromise that has been found for accommodating these often opposing interests. Requiring more would unduly hamper law enforcement. To allow less would be to leave law-abiding citizens at the mercy of the officers’ whim or caprice. 6Brinegar v. United States, 338 US 160, 176 (1949).
Bottom line: seizures and forfeiture proceedings serve different purposes, like arrests and trials. The warrant is a preliminary instrument whose function is to establish probable cause of a crime. Actually proving guilt or innocence comes later. The realities of enforcing law require a lot of leeway in a warrant: it’s enough for probable cause that the facts and circumstances in the affidavit would lead a reasonable man to conclude that there is a likelihood that a crime was committed.
One of the “errors” alleged by Techdirt is the inclusion of statistics about the effects of online piracy in the affidavit. These statistics were likely added to provide context or background to the investigation for the judge reviewing the warrant. The “error” is that Techdirt disputes the validity of the statistics. But whether or not you agree with the accuracy of the statistics cited in the warrant is irrelevant: probable cause for copyright infringement doesn’t depend on the scope of the harm in the aggregate.
Other “errors” pointed out include the use and definition of certain terms. For example, the classification of Torrent-finder as a “bit torrent website” is disputed because it “hosts no tracker” and “hosts no infringing content.” But the terms are only descriptive, irrelevant to whether or not probable cause of a crime exists. Even if the terminology is technically incorrect, this is the type of “error” that the law doesn’t care about in warrants.
I’m not even sure the terminology used here is even wrong in the first place. BitTorrent is a protocol, so there’s an accepted, technical definition for that — but is there an accepted, technical definition for a “bit torrent website”? Wikipedia lists sites similar to Torrent-finder at Comparison of BitTorrent sites: sites that search through multiple torrent search engines but do not host trackers or infringing content themselves.
Some of the other “errors” found in the seizure warrant include what amount to possible defenses against criminal copyright infringement — for example, the operator of one of the sites whose domain name was seized claims that several of the songs available to download that had been identified in the warrant were authorized to be shared for promotional purposes. If true, this would of course mean that there was no infringement of those specific songs. But that’s an issue for the forfeiture proceeding, not the probable cause determination.
The Supreme Court has “flatly rejected the idea that the police have a standing obligation to investigate potential defenses before finding probable cause.” 7Acosta v. Ames, 386 F. 3d 5, 11 (1st Circuit, 2004), citing Baker v. McCollan, 443 U.S. 137, 145-46 (1979). Possible defenses and claims of innocence are issues for the judge and jury, not law enforcement officials. Yes, this means that sometimes property is seized or people are arrested that later are found not guilty. That is the purpose of the trial — to determine innocent or guilt. But “the Constitution does not guarantee that only the guilty will be arrested” and “due process does not require that every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting an innocent person.” 8Baker v. McCollan
An actual legal challenge to this warrant would not likely be successful, but I doubt that is the goal of those pointing out the “errors” they’ve found. It’s not as though if some of the technical definitions were worded differently, or alternate statistics were used, critics would have no problem with the seizures.
Their problem is disagreement with fundamental copyright laws, so any attempts to enforce those laws are attacked any way they can. Critics seem to want an exception from these rules of probable cause and procedure — rules that apply to pretty much every other law, both federal and state — for piracy. A “balanced” copyright law, it seems, is one that places all the burden on the copyright holder — from creating and investing in new works to policing and enforcing the rights in those works — while requiring that “every conceivable step be taken, at whatever cost, to eliminate the possibility of convicting” a torrent search engine. 9Quote taken from Baker v. McCollan, where it was used in the context of describing what due process does not require.
|↑1||See Homeland Security Presents ‘Evidence’ for Domain Seizures; Proves it Knows Little About the Internet — Or the Law; Full Homeland Security Affidavit to Seize Domains Riddled With Technical and Legal Errors; More and Bigger Mistakes Discovered in Homeland Security’s Domain Seizures.|
|↑2||Locke v. United States, 11 US 339, 348 (1813).|
|↑3||Brinegar v. United States, 338 US 160, 174-76 (1949).|
|↑4||See Brinegar; Spinelli v. US, 393 US 410, 419 (1969); Beck v. Ohio, 379 U. S. 89, 96 (1964); McCray v. Illinois, 386 U. S. 300, 311 (1967); United States v. Ventresca, 380 U. S. 102, 108 (1965); Barber v. Page, 390 U.S. 719, 725(1968).|
|↑5||380 US 102, 108 (1965).|
|↑6||Brinegar v. United States, 338 US 160, 176 (1949).|
|↑7||Acosta v. Ames, 386 F. 3d 5, 11 (1st Circuit, 2004), citing Baker v. McCollan, 443 U.S. 137, 145-46 (1979).|
|↑8||Baker v. McCollan|
|↑9||Quote taken from Baker v. McCollan, where it was used in the context of describing what due process does not require.|