Two weeks ago, I discussed some of the criticisms of domain name seizures in ICE Seizures Criticism: Magic Words. It was, in part, a response to those who argue the seizures are unconstitutional — among them US Representative Zoe Lofgren and attorney David Mackarewicz, who continued the discussion in his response, Supporters of DHS Domain Name Seizures Undervalue Important Constitutional Protections.
I made it a point to highlight the use of certain “magic words” in the debate — like “prior restraint” and “due process” — not, as Mackarewicz says, to “question the motives” of the seizures’ critics, but to bring to the forefront how they can be used in constitutional arguments.
Nobody wins popularity contests defending the constitutionality of a government action. It’s not hard to imagine a typical debate going like this:
“I think x is unconstitutional.”
“Why do you hate the constitution?”
Mackarewicz provides a perfect example of this right in the title of his response, claiming that supporters of these seizures “undervalue” constitutional protections. Presumably, this would include noted First Amendment advocate Floyd Abrams among those who undervalue the constitution, since he has concluded that COICA (which would use in rem forfeiture of domain names) does not run afoul of free speech protections.
Others are more blunt. Mike Masnick writes, “One of the really sickening things in the debate over the seizures of domains by the US government without due process and with no regard to prior restraint is the way some pro-copyright lawyers have tried to wave off these rather significant concerns,” citing my article as an example.
So you can see why constitutional arguments have special considerations different from other types of arguments. The temptation is always there to label those who don’t accept the argument that something is unconstitutional as foes of freedom.
Contrary to these accusations, I do value the Constitution and its protections against censorship and undue process. I can’t speak for others who believe the domain name seizures are constitutional — literally millions of Americans1 — but I imagine they value it too.
With that said, I want to respond specifically to some of the arguments raised by Makarewicz.
It bears repeating what the due process issue is here: whether a hearing is needed prior to the seizure of domain names, alleged to facilitate copyright infringement, for the purpose of forfeiture, to give any claimants the opportunity to challenge the government’s probable cause determination.2 There is little doubt that, assuming the process is constitutional, domain names can be forfeited, it’s just a question of what process is constitutional.
Makarewicz writes, “The most troubling issue has undoubtedly been the series of Government domain name seizures, through which the DHS takes the domain names of accused infringers without first giving the accused a chance to defend their site at a hearing.” Later, he refers, quite correctly, to the rule that “a Government taking prior to notice and a hearing is not the norm, but is limited to “extraordinary circumstances.” There are only a few recognized exceptions to the rule that requires notice and a hearing prior to a deprivation of property.
However, one of those exceptions is when the government seizes property for the purpose of forfeiture. The Supreme Court has plainly said this on more than one occasion in recent history. In her concurrence-dissent of US v. James Daniel Good Real Property, Justice O’Connor writes:
We have already held that seizure for purpose of forfeiture is one of those “extraordinary situations,” Fuentes v. Shevin, 407 U. S. 67, 82 (1972) (internal quotation marks omitted), in which the Due Process Clause does not require predeprivation notice and an opportunity to be heard. Calero-Toledo v. Pearson Yacht Leasing Co., 416 U. S. 663, 676-680 (1974). As we have recognized, Calero-Toledo “clearly indicates that due process does not require federal [agents] to conduct a hearing before seizing items subject to forfeiture.” United States v. $8,850, 461 U. S. 555, 562, n. 12 (1983); see also United States v. Von Neumann, 474 U. S. 242, 249, n. 7 (1986). Those cases reflect the commonsense notion that the property owner receives all the process that is due at the forfeiture hearing itself. (Emphasis added).3
As Floyd Abrams points out, “injunctions are a longstanding, constitutionally sanctioned way to remedy and prevent copyright violations.” Arguments that actions similar to seizure of domain names are prior restraints have been raised and answered by various courts already.4
But even if the seizure of a domain name could be considered a prior restraint, as Makarewicz argues, it doesn’t necessarily follow that a pre-seizure hearing is required.
When seizures raise First Amendment concerns, courts have only gone as far as to say that they require “rigorous procedural safeguards” to conform with the Constitution.5 For instance, in Roaden v. Kentucky, the Supreme Court held that the First Amendment, at a minimum, requires a warrant before seizing obscene materials. “The setting of the bookstore or the commercial theater, each presumptively under the protection of the First Amendment, invokes such Fourth Amendment warrant requirements because we examine what is “unreasonable” in the light of the values of freedom of expression,” said the Court.6 But in a footnote, it added, “This does not mean an adversary proceeding is needed before seizure, since a warrant may be issued ex parte.”7
That same year, in Heller v. New York, the Court reiterated the fact that seizures of expressive works do not always require an adversary proceeding prior to executing the warrant. “This Court has never held, or even implied, that there is an absolute First or Fourteenth Amendment right to a prior adversary hearing applicable to all cases where allegedly obscene material is seized.”8 It explained that its reversal of a Kansas State Court judgment ordering the seizure of 1,715 copies of 31 novels in A Quantity of Copies of Books v. Kansas,9 based in part on the lack of an adversary hearing on the matter, did not create a blanket rule. ”In Mishkin v. New York,383 U. S. 502 (1966), this Court refused to review the legality of a seizure of books challenged under A Quantity of Books, supra … If A Quantity of Books applied to all seizures of obscene material, there would have been no need for the Court to abstain from review in Mishkin, since the parties had conceded that there was no prior adversary hearing.”10
The “classic” notion of a prior restraint involves some sort of licensing for publications or censor board to review whether certain items could be distributed to the public. That notion has been gradually broadened over the decades to include a range of government actions and laws that suppress speech before a final judicial determination that it is unprotected by the First Amendment.
Even so, while looking at prior restraint doctrine as courts and scholars have examined it, it seems to me that prior restraint still requires some kind of, well, restraint.
One common thread in these cases is that a prior restraint involves a prohibition on future expressive conduct. So, for example, the RICO forfeiture order examined by the Supreme Court in Alexander v. United States was not an improper restraint because it didn’t forbid the owner from any expressive conduct or require approval for any future expressive conduct. Said the Court, “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.”11
In Vance v. Universal Amusement Co., the Court held that a Texas nuisance statute (specifically, the portion of the statute naming the “commercial exhibition of obscene material” as a prohibited use) could not be used to close down movie theaters. Any such injunction would effectively prohibit the “future exhibition of unnamed films.”12
Another thread you see in the prior restraint cases is that they involve the removal of speech from circulation.
- But there is no doubt that an effective restraint—indeed the most effective restraint possible—was imposed prior to hearing on the circulation of the publications in this case, because all copies on which the police could lay their hands were physically removed from the newsstands and from the premises of the wholesale distributor. An opportunity comparable to that which the distributor in Kingsley Books might have had to circulate the publication despite the interim restraint and then raise the claim of nonobscenity by way of defense to a prosecution for doing so was never afforded these appellants because the copies they possessed were taken away. Their ability to circulate their publications was left to the chance of securing other copies, themselves subject to mass seizure under other such warrants. The public’s opportunity to obtain the publications was thus determined by the distributor’s readiness and ability to outwit the police by obtaining and selling other copies before they in turn could be seized.13
- “It is our view that since the warrant here authorized the sheriff to seize all copies of the specified titles, and since P-K was not afforded a hearing on the question of the obscenity even of the seven novels before the warrant issued, the procedure was likewise constitutionally deficient. … A seizure of all copies of the named titles is indeed more repressive than an injunction preventing further sale of the books.” (Emphasis added).14
- “In this case, of course, the film was not subjected to any form of ‘final restraint,’ in the sense of being enjoined from exhibition or threatened with destruction. A copy of the film was temporarily detained in order to preserve it as evidence. There has been no showing that the seizure of a copy of the film precluded its continued exhibition.”15 “But seizing films to destroy them or to block their distribution or exhibition is a very different matter from seizing a single copy of a film for the bona fide purpose of preserving it as evidence in a criminal proceeding, particularly where, as here, there is no showing or pretrial claim that the seizure of the copy prevented continuing exhibition of the film.”16
- “Here, literally thousands of books and films were carried away and taken out of circulation by the pretrial order.” (Emphasis added).17
- “In each case the material seized fell arguably within First Amendment protection, and the taking brought to an abrupt halt an orderly and presumptively legitimate distribution or exhibition.”18
Looking at the above and other cases involving prior restraints, it’s difficult to see how seizing the domain name of a website dedicated to infringement is a prior restraint without taking too many logical leaps. No one is prohibited from expressing themselves now or in the future. The content on the websites remains in circulation.
That’s not to say that a specific domain name seizure can’t be a prior restraint. If the government seizes a domain name for the purpose of suppressing speech on that site it doesn’t like, under the guise of copyright laws, child pornography laws, or any of the other laws where forfeiture of facilitating property is authorized, then yes, most likely that is an unconstitutional prior restraint.
But that situation can be dealt with if it ever arises. The possibility that a law can be abused doesn’t make it unconstitutional; otherwise, I don’t know if we’d have any laws left! The Supreme Court itself has weighed in on this subject. ”The Constitution does not forbid the imposition of an otherwise permissible criminal sanction, such as forfeiture, merely because in some cases prosecutors may abuse the processes available to them … Cases involving particular abuses can be dealt with individually by the lower courts, when (and if) any such cases arise.”19
Why Domain Name Seizures are Needed
One of the responses to this is to question why the domain names are seized at all if they are seemingly ineffective since the content remains online.
But they are effective. Remember, the domains are seized because they are property that facilitate criminal conduct —copyright infringement — occurring due to the sites. The domain name provides an easy to remember address that attracts more visitors to these sites. They allow better search engine optimization for the sites — in many cases pirate sites appear above sites offering the same content legitimately in search results. Most of these sites earn revenues from advertising — Brian McCarthy, arrested last month after his domain was seized, made $90,000 in three years off his site, and Torrent-Finder, seized last November, made over $15,000 in one year from only one of its advertising providers — so traffic and good search results are key to their success.
And the government has a legitimate interest in seizing domain names before a hearing. Seizure is needed to establish jurisdiction over the property for a forfeiture proceeding. Securing the exclusive rights of copyright holders is one of the enumerated powers of Congress listed in the Constitution, rights that the sites connected to the domain names are alleged to continually violate. While a domain name can’t be “destroyed” in the same sense as tangible property, a site owner can easily cancel the domain and get a new one if given a “heads up” by ICE, destroying the connection between the domain name and the site where the infringement is occurring. Finally, the infringement facilitated by the domain names causes irreparable and ongoing harm to copyright holders’ First Amendment rights, adding to the need for seizing without a pre-seizure hearing.20
Obviously, seizing domain names won’t eliminate piracy, but that was never their goal. Content industries have been dealing with one form of piracy or another as long as they’ve been around, so they know more than anyone that complete eradication is impossible. But the seizures do have an impact. They disrupt the operation of pirate sites, making it more difficult to engage in and profit off of infringement. And if a new version of COICA passes, the effect of the seizures will be even greater.
I don’t expect critics of the seizures to agree with the above. But they can express their disagreement without calling into question how much creators value constitutional freedoms — especially when they help fuel the “engine of free expression.”
To borrow some words of wisdom from the late Chief Justice Warren Burger, these critics “sound the alarm of repression.” But “to equate the free and robust exchange of ideas and political debate with” copyright infringement “demeans the grand conception of the First Amendment and its high purposes in the historic struggle for freedom. It is a ‘misuse of the great guarantees of free speech and free press.’”21
- See the November 17, 2010 letter from nine unions representing over 3 million members to Senator Leahy in support of COICA; the Joint Statement Regarding ‘Combating Online Infringement and Counterfeits Act’ from four unions representing over 300,000 entertainment and media workers; and the January 18, 2011, letter from dozens of companies of all sizes supporting Operation in Our Sites for just three such statements of support. [↩]
- See US v. James Daniel Good Real Property, 510 US 43, 78 (1993): “At any hearing—adversary or not—the Government need only show probable cause that the property has been used to facilitate a drug offense in order to seize it; it will be unlikely that giving the property owner an opportunity to respond will affect the probable-cause determination.” [↩]
- 510 US 43, 74 (1993). [↩]
- See Dr. Seuss Enterprises v. Penguin Books, 109 F.3d 1394, n.11 (9th Cir. 1997); A & M Records v. Napster, 114 F.Supp.2d 896, 922-23 (ND Cali 2000); Universal City Studios v. Reimerdes, 82 F.Supp.2d 211, 224-27 (SDNY 2000). [↩]
- Fort Wayne Books v. Indiana, 489 US 46, 62 (1989). [↩]
- 413 US 496, 504 (1973). [↩]
- 413 US at n.5. [↩]
- 413 US 483, 488 (1973). [↩]
- 378 US 205 (1964). [↩]
- 413 US 483, n.8. [↩]
- 509 US 544, 550-51 (1993). [↩]
- 445 US 308, 314 (1980). [↩]
- Marcus v. Search Warrant, 367 US 717, 736 (1961). [↩]
- Quantity of Copies of Books v. Kansas, 378 US 205, 210 (1964). [↩]
- Heller v. New York, 413 US 483, 490 (1973). [↩]
- Id. at 492. [↩]
- Fort Wayne Books v. Indiana, 489 US 46, 67 (1989). [↩]
- Roaden v. Kentucky, 413 US 496, 504 (1973). [↩]
- Caplin & Drysdale, Chartered v. US, 491 US 617 (1989). [↩]
- See, for example, Salinger v. Colting, 607 F.3d 68, 81 (2nd Cir. 2010): “‘[t]he loss of First Amendment freedoms,’ and hence infringement of the right not to speak, ‘for even minimal periods of time, unquestionably constitutes irreparable injury’; also see my posts on Speech Interests of Creators and The Chilling Effect of Copyright Infringement. [↩]
- Inspired by his opinion in Miller v. California, 413 US 15, 34 (1973). [↩]