The seizure of around 100 domain names over the past eight months by the US Immigration and Customs Enforcement agency (ICE) continues to draw discussion.
Silicon Valley Representative Zoe Lofgren has recently voiced her criticisms of the domain name seizures to Intellectual Property Enforcement Coordinator Victoria Espinel. Additional criticisms come from attorney and Sites and Blogs writer David Makarewicz, who last week wrote five reasons why the domain name seizures are unconstitutional. Chris Greenwood, of the Phoenix Independent Examiner, compares the arrest of Bryan McCarthy — one of the first individuals arrested in connection with Operation in Our Sites — to Muammar Gaddafi’s brutal crackdown on his own people.
Hyperbole aside, criticisms of the seizures often center around the use of certain magic words: “due process” and “prior restraint”.
In an interview with Ars Technica, Rep. Lofgren says without further detail, “[ICE's] effort to essentially seize — I think illegally — these domain names lacks due process.” Later, responding to an RIAA letter that addressed her First Amendment concerns regarding the seizures, she said bluntly, “This is prior restraint of speech, and you can’t do that in America.”
I’ve previously explored the constitutional issues surrounding both the domain name seizures and the related Combating Online Infringement and Counterfeits Act (COICA) here. In addition, noted First Amendment scholar Floyd Abrams has done a much better job than me addressing the First Amendment issues surrounding COICA, concluding that it doesn’t run afoul of the Constitution.
Nevertheless, criticisms seem to return again and again to the same charges — No due process! Prior restraint! — as though repeating these words enough will magically make domain name seizures unconstitutional.
But it won’t. Let’s see why.
When discussing these domain name seizures, it’s always helpful to remind ourselves that “seizure” and “forfeiture” are two distinct events. Seizure is the initial taking of property into the government’s custody to establish jurisdiction for a civil in rem proceeding. Forfeiture is the final deprivation of the property without compensation. I think there’s little doubt that, assuming all aspects of the proceedings leading to a forfeiture are constitutional, the forfeiture of domain names are very much constitutional.
So what does the constitution require for an initial seizure of property? The Fourth Amendment says, quite clearly, that seizures must be “reasonable,” and must be accompanied by warrants issued “upon probable cause” and “particularly describing” the “things to be seized.”
Simple enough. You can see the warrant and affidavit for the first round of domain name seizures yourself. Probable cause? Check. Particular description of things to be seized? Check.
That would end our constitutional inquiry if the Fourth Amendment provided the full measure of due process required in property seizures. But according to the Supreme Court, it doesn’t. “Though the Fourth Amendment places limits on the Government’s power to seize property for purposes of forfeiture,” said the Court in 1993, “it does not provide the sole measure of constitutional protection that must be afforded property owners in forfeiture proceedings.” [Emphasis added]. Seizures must still satisfy the due process requirements written into the Fifth Amendment.
The Fifth Amendment, of course, provides that “No person … shall be deprived of life, liberty, or property, without due process of law.”
At a very basic level, due process means that government must act in accordance with law, as opposed to acting according to its whims. It also requires minimum levels of regularity and fairness in the procedures used by government. Even more basically, due process requires notice and a hearing before a final deprivation of life, liberty, or property.
The general process for a criminal trial should be familiar to most of us: an alleged offender is arrested (a seizure of a person), charges are filed, a trial is held, and a verdict is given. Process for a civil in rem forfeiture is much the same: property is seized, a complaint is filed, a trial is held, and a verdict is given. Like other civil proceedings, if no one shows up to defend the property, a default judgment is given.
Some critics have gone so far as to claim that the forfeiture process here lacks notice and a hearing. That’s simply untrue. The forfeiture complaint for the first group of domain names seized is available online for anyone to see for themself. No claimants have felt the need to contest these forfeitures, so the government is currently requesting a default judgement.
Notice of each of these seizures were sent to whatever name and address was used to register the domain name, as well as being posted on forfeiture.gov. Never mind the giant banners plastered on the web sites whose domain names were seized. If you woke up one day and saw that instead of your own web site, I think it’s fair to say that you would be put on notice that something was up.
The more realistic criticism is a far narrower one: do these seizures require that the hearing occurs before the domain name is seized. This is the criticism that Makarewicz raises. He states, “This right to prior notice and hearing is not a minor legal technicality. It is an indispensible aspect of due process. It is the only way an individual can protect himself from the Government arbitrarily or mistakenly depriving him of property before it happens.” He goes on to correctly point out that, despite this indispensable aspect, “Over the years, the courts have carved out certain limited exceptions to the pre-deprivation notice and hearing requirement.”
Makarewicz concludes that these exceptions aren’t present here; the seizures aren’t exempted from the requirement to provide a hearing before they occur. I disagree.
Keep in mind, though the seizure of domain names themselves is relatively recent, seizing property in general is old as dirt — asset forfeiture is typically traced to Biblical times, and one of the first laws passed by Congress in 1789 provided for it. The particular federal forfeiture statutes at issue here are decades old.
And it’s not like they are little-used, obscure laws. Asset forfeiture has been a primary tool in the drug war since the 1980’s, for example. So it would be considerably surprising if constitutional objections to the laws haven’t been heard by courts.
But they have. The question of whether the statutes used to seize these domain names requires a pre-seizure hearing has been answered. In US v. E-Gold, the District Court of DC held that “the circumstances giving rise to the seizure of assets upon probable cause that the assets were used in violation of specified criminal statutes meets the ‘extraordinary circumstances’ three-part test for seizure without a predeprivation hearing.” The Western District Court of Kentucky also acknowledged that exceptions to a predeprivation hearing “apply in civil forfeiture actions” under § 983. In US v. Bajakajian, the Supreme Court itself heard an Eighth Amendment challenge to a federal forfeiture action, one that occurred without a predeprivation hearing, lending further credence to the lawfulness of the process involved under these laws.
Bottom line, case law from the lowest courts to the Supreme Court over a period of decades fully supports the notion that these seizures comply with due process.
Won’t Somebody Think of the First Amendment?
Due process claims against a decades old law that has been thoroughly tested in courts don’t convince me, but critics of the domain name seizures have another magic word to rely on: prior restraint.
As I point out in Copyright and Censorship, a claim that the First Amendment is being violated is powerful; who wants to say they’re against free speech?
And among First Amendment claims, the most powerful charge is that a certain action amounts to a “prior restraint.” Since the birth of the concept of freedom of speech, it has widely been accepted that a prior restraint on speech is far worse than subsequent punishment of speech.
For that very reason, prior restraint is very powerful as a magic word. So much so that the Supreme Court has addressed the need for caution. “The phrase “prior restraint” is not a self-wielding sword,” it said in Kingsley Books v. Brown. “Nor can it serve as a talismanic test.”
Critics often rely on a string of cases where the seizure of large quantities of expressive materials without a prior judicial determination that they were not protected by the First Amendment was found to be a prior restraint. But the key distinction is that it is only the property interest in a domain name that is being seized here, not the content of the web site itself or the servers that the content resides on. A domain name is not like 1,715 books (what was seized in Quantity of Copies of Books v. Kansas) no matter how you spin it. Saying that seizing the domain name is kind of like seizing the content is like saying someone is “kind of pregnant.”
What’s more, those cases all involved obscenity. Whether a specific work is obscene or not is a legal determination, one that cannot be made by law enforcement officials, which is why courts have called for stronger procedural safeguards when obscene materials are seized. Factual, objective determinations, however, can be made by law enforcement officials. Thus, these procedural safeguards are not needed when items are seized for violating child pornography laws; law enforcement officials don’t need a judge to determine that something depicts a minor engaged in explicit sexual conduct.
Copyright infringement — especially the consumptive infringement at issue here rather than creative infringement where questions of fair use or substantial similarity can be raised — is similarly an objective question. Law enforcement officials, with the aid of copyright holders, can tell for themselves that yes, this web site is distributing Toy Story 3, and no, they do not have permission.
Seizures of infringing materials bear out the fact that stronger procedural guarantees are not applicable in the copyright context. The argument that the obscenity seizure cases apply was explicitly rejected in Jondora Music Publishing v. Melody Recordings. In US v. Bodin, the defendant’s First Amendment argument against seizure was dismissed even more explicitly and summarily, with the court stating, “We do not find any denial of freedom of expression to the ‘tape pirate.'” You can see implicit support of this proposition too; for example, the 9th Circuit upheld the seizure of 25,000 infringing recordings in Duchess Music v. Stern pending a hearing on the merits.
Finally, the Supreme Court itself has eluded to the constitutionality of restraining the distribution of infringing materials prior to an adversarial hearing when it said, “The Congress has authorized a strain of prior restraints against private parties in certain instances … Article I, § 8, of the Constitution authorizes Congress to secure the “exclusive right” of authors to their writings, and no one denies that a newspaper can properly be enjoined from publishing the copyrighted works of another.”
Domain name seizures are not prior restraints in any sense of the word. They aren’t made based on the content of any expression. They do not remove any expression from circulation. And they don’t bar any future expression from either the web site owner or its users.
This conclusion is buttressed by the Supreme Court’s holding in Arcara v. Cloud Books, which upheld the closure of a bookstore under a general nuisance statute for its role as a place of prostitution and lewdness. Said the court:
The closure order sought in this case differs from a prior restraint in two significant respects. First, the order would impose no restraint at all on the dissemination of particular materials, since respondents are free to carry on their bookselling business at another location, even if such locations are difficult to find. Second, the closure order sought would not be imposed on the basis of an advance determination that the distribution of particular materials is prohibited — indeed, the imposition of the closure order has nothing to do with any expressive conduct at all.
In Alexander v. US, the Court applied the same reasoning to uphold a forfeiture of a number of bookstores based on defendant’s conviction under RICO for obscenity violations, despite the defendant citing to the same string of obscenity cases previously discussed. Chief Justice Rehnquist noted that the forfeiture
[D]oes not forbid petitioner to engage in any expressive activities in the future, nor does it require him to obtain prior approval for any expressive activities. It only deprives him of specific assets that were found to be related to his previous racketeering violations. Assuming, of course, that he has sufficient untainted assets to open new stores, restock his inventory, and hire staff, petitioner can go back into the adult entertainment business tomorrow, and sell as many sexually explicit magazines and videotapes as he likes, without any risk of being held in contempt for violating a court order. Unlike the injunctions in Near, Keefe, and Vance, the forfeiture order in this case imposes no legal impediment to—no prior restraint on—petitioner’s ability to engage in any expressive activity he chooses. He is perfectly free to open an adult bookstore or otherwise engage in the production and distribution of erotic materials …
While not a prior restraint on expression, domain name seizures do have an impact on noninfringing expression on web sites — blog posts, message boards, etc. However, this impact does not impinge on First Amendment protections.
As Floyd Abrams concludes, these domain name seizures are not unconstitutionally broad. Further support for this conclusion comes from courts upholding injunctions that applied to both infringing and noninfringing aspects of a defendant’s product or service. The court in A&M Records v. Napster put it this way: “Courts will not sustain a First Amendment challenge where the defendant entraps itself in an ‘all-or-nothing predicament.'”
David Makarewicz questions the government’s interest in protecting its citizens’ copyrights, saying “preventing copyright infringement is not an important enough public goal to justify seizure without prior notice or hearing.” But the question of the government’s interest in stopping piracy is not some sort of abstract, philosophical inquiry.
Securing creators’ copyrights is one of Congress’s powers. Even if one ignores all the evidence about the economic harms of piracy, and the irreparable harm it causes to creators’ own free speech rights and the chilling effect it has on future expression, the fact remains that of the handful of enumerated powers given to the Legislative branch by the Framers of the Constitution, promoting the progress of the arts by securing creators’ exclusive rights is one of them. And since 1790, copyright laws have been in place to advance this goal.
As the 10th Circuit noted recently, “Copyright serves to advance both the economic and expressive interests of American authors. In addition to creating economic incentives that further expression, copyright also serves authors’ First Amendment interests.” These interests, and the challenges of enforcing them online, have led to these domain name seizures.
The criticisms of the seizures are essentially disagreements over policy dressed up as constitutional concerns — much like the disagreement over extending term limits in Eldred v. Ashcroft. There, Justice Ginsburg noted that “Beneath the facade of their inventive constitutional interpretation, petitioners forcefully urge that Congress pursued very bad policy in prescribing the CTEA’s long terms.” The same is true here; critics don’t like the domain name seizures or COICA and have brought the Constitution into play to add rhetorical heft to their disagreements.
I personally think domain name seizures, especially if combined with a COICA-type law that encourages other companies within the internet ecosystem to take reasonable measures to ensure their services aren’t used to harm creators, are a valuable tool for minimizing the harms of piracy. Questioning this policy is fair, but painting these actions as violating the constitution, and repeating the same magic words instead of providing real arguments — while providing no alternative solutions in their place — only detracts from the debate.