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.”
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.
The Errors?
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
at 145.
Conclusion
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.
References
| ↑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 at 145. |
| ↑9 | Quote taken from Baker v. McCollan, where it was used in the context of describing what due process does not require. |
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Great article as usual, and I agree 100% that there was sufficient probable cause to issue the warrant, at least in the torrent-finder.com case (the only case I’ve been following closely).
I’m wondering about this… The Supreme Court appears to have identified a First Amendment exception to Fourth Amendment seizures:
“Thus, while the general rule under the Fourth Amendment is that any and all contraband, instrumentalities, and evidence of crimes may be seized on probable cause (and even without a warrant in various circumstances), it is otherwise when materials presumptively protected by the First Amendment are involved. Lo-Ji Sales, Inc. v. New York, 442 U.S. 319, 326, n. 5, 99 S.Ct. 2319, 2324 n. 5, 60 L.Ed.2d 920 (1979). It is “[t]he risk of prior restraint, which is the underlying basis for the special Fourth Amendment protections accorded searches for and seizure of First Amendment materials†that motivates this rule. Maryland v. Macon, supra, 472 U.S., at 470, 105 S.Ct., at 2782.”
Fort Wayne Books, Inc. v. Indiana, 489 U.S. 46, 63-64 (1989).
So, if the thing being seized is “presumptively protected by the First Amendment,” then it cannot be seized on just probable cause. That raises the question of whether or not domain names are presumptively protected. From the caselaw I’ve read, I’ve gleaned that domain names can be protected as either commercial speech or core speech. This has me wondering if the judge reviewing these seizure warrants is supposed to be considering whether the domain name in question is protected speech or not. If it appears to be protected speech, shouldn’t the warrant be denied?
What’s your take? Thanks!
It’s a good question. Items presumptively protected by the First Amendment may be initially seized based on probable cause, but a judicial determination of whether or not the items are not determined should be held as soon as possible. There has been some confusion in lower courts about whether a higher standard is needed to show probable cause, but the Court in New York v. PJ Video (475 US 868) said, “an application for a warrant authorizing the seizure of materials presumptively protected by the First Amendment should be evaluated under the same standard of probable cause used to review warrant applications generally.” In Heller v. New York (413 US 483), the Court explicitly noted that the judicial determination does not have to come before a seizure of presumptively protected items — so long as it is held promptly afterward.
Note that even a judicial determination that the items that were seized are protected by the First Amendment has nothing to do with the warrant used to seize them.
Of course, the bigger question is, as you pointed out, whether or not these domain names are protected speech — the actual websites and content were not seized. Generally, those courts that have broached this issue recognize that domain names can be protected speech — especially in “gripe site” cases where the domain name itself conveys a message (“copyhype-sucks.com”, eg). I’m inclined to think there is little, if any, expressive content to “torrent-finder.com”.
I’d check out Stopping Internet-Based Tobacco Sales Through Domain Name Seizures for a pretty good analysis of the First Amendment question present here. The article points out some areas of concern but concludes that such seizures likely are constitutional.
For the opposite conclusion (domain name seizures are unconstitutional), a good place to start is the EFF’s amicus brief for Vicsbingo.com v. Kentucky. I think the brief takes an overly broad view of the First Amendment and overly broad reading of court holdings, but YMMV.
Just a couple of points on the above. First, although your assessment of the “probable cause” standard generally seems correct, I have to quibble with one aspect of it. A critical question is probable cause of what. You (and many other commenters, it seems) characterize the standard as “probable cause to believe that a crime has been committed.” But I don’t think that’s quite right. The seizure warrant at issue here is neither a search warrant nor an arrest warrant for a person, but rather, a warrant to seize property on the grounds that the property was used to facilitate a crime. The government must show probable cause to believe the property is subject to forfeiture. 18 USC 2323 allows forfeiture of property used to facilitate copyright crimes. So it’s not enough just to show that a crime was committed; one also must show that the target property was used to commit it. And where the government seeks to forfeit “facilitating property,” CAFRA imposes an additional requirement: that there be a “substantial connection” between the property and the crime in question. See 18 USC 983(c). “Substantial connection” is hardly self-defining, although “more than incidental or fortuitous” is a phrase that comes up repeatedly. Domain name seizures weren’t on Congress’s radar screen when CAFRA was debated, but in considering seizures of commingled bank accounts or entire businesses as facilitating property, the legislative history of CAFRA suggest that the “substantial connection” standard means its “primary purpose” must be to facilitate crime. See 146 Cong. Rec. H2051. Unfortunately however one defines substantial connection, the affidavit does not address it.
The distinction between seizing an article as evidence and seizing it in order to forfeit it is also relevant to your First Amendment discussion. You cite both Heller and PJ Video as supporting your argument that probable cause is an adequate standard for seizing even presumptively-protected materials. But the Court in Fort Wayne Books, in discussing those very same cases, drew a distinction between seizure of a single copy for evidentiary purposes (which would be fine based solely on probable cause), and taking “a publication … out of circulation completely” (which may not be done without an adversary hearing).
I realize you disagree with the notion that seizure of domains amounts to taking the sites “out of circulation completely.” You are correct that there may be other ways to access the sites underlying a seized domain, and the owners of the sites themselves are (probably) not deprived of access to the material on them, which may make a difference. Although in this case, ICE itself argues that seizing the domains amounts to taking the sites out of commission (that’s one of their stated goals in seizing the domains). Even if you’re correct that domain seizure isn’t precisely like the seizure of an entire business’s stock of books (which the Court in Fort Wayne Books held impermissible without an adversary hearing), it is even less similar to the seizure of a single copy for evidentiary purposes (the type of seizure for which the Court allowed seizure of First Amendment material based solely on probable cause). Heller and PJ Video do not seem applicable here.
Thanks for the insightful comments Paula.
The government must show probable cause to believe the property is subject to forfeiture. 18 USC 2323 allows forfeiture of property used to facilitate copyright crimes. So it’s not enough just to show that a crime was committed; one also must show that the target property was used to commit it. And where the government seeks to forfeit “facilitating property,†CAFRA imposes an additional requirement: that there be a “substantial connection†between the property and the crime in question.
Good point. As I understand it, however, the substantial connection between the property and the crime must be shown at trial by a preponderance of the evidence. The forfeiture complaint need only state facts sufficient to allow a claimant to begin investigation or draft a responsive pleading, while the warrant need only show probable cause that there is a nexus between the crime and the property in question.
You may be right, but I think it may depend on what you mean by “nexus.” Courts dealing with the issue pre-CAFRA characterized the standard (at the warrant phase) as “probable cause for belief that a substantial connection exists between the property to be forfeited and the criminal activity defined by the statute.” See, eg Boas v Smith, 786 F.2d 605, 609 (4th Cir.1986). Since the substantial connection is a requirement for forfeitability under CAFRA, probable cause to believe the property is forfeitable would seem to require probable cause to believe there’s a substantial connection. Whether there’s any daylight between that standard and the “nexus” showing you mention, I don’t know.
You may be right too. However, I think you may be a bit off concerning pre-CAFRA forfeiture. Before CAFRA, the government had to only show probable cause of the substantial connection between the crime and the property at trial. The discussion in Boas seems to me to be talking about probable cause in that context rather than in the warrant context.
I can’t find any cases addressing what need be shown on a seizure warrant for property alleged to facilitate a crime (though admittedly I’ve only done a cursory search.) However, according to an article in the Nov 2007 US Attorneys’ Bulletin, “the government may seize personal property, even prior to filing the complaint, through a seizure warrant obtained simply upon showing probable cause to believe that the property to be seized is subject to forfeiture.”
If I recall correctly, the law is supposed to be about stimulating our economy. When the law is invalid, it works to hinder progress. There are quite a few parallels of bad laws to the human rights issues of the last millennium.
It probably wouldn’t be so bad but you’ve left out a few “errors” or absolutely ignored them. One is that there have been NO signs of Judge Nagle allowing the domains themselves to have a say in these closures. Yes, some have moved on. But with at least four sites (the hip hop blogs + torrent site, which you’ve focused on) the laws are questionable. You go on to say that these are permitted because of seizure laws allowing for surprise takedowns. But the “evidence” which you’ve dismissed tells exactly the effect this has had on the economic landscape of the internet.
First, a bittorrent exodus has occurred. This is all revenue that the US would have collected through taxes. Now? They help to stimulate Europe. They help to stimulate other countries, but not the US. Meanwhile, the takedowns appear to be effective only once then people will respond. Will the VeriSign/ICE combo find better sites to takedown? It’s doubtful. And with TorrentFinder preparing a courtcase against them, it’s questionable that this can continue.
And your conclusion seems to be a large strawman:
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
Copyright law is unfairly balanced toward large businesses. What is truly unfortunate is that no one understands that the lobbying of the industries involved (the MPAA and RIAA respectively) changed these into the current laws against anything that could actually “progress the arts and sciences”.
I mean honestly… With the hip hop blogs, they have actually helped to make the music that much more prevalent with songs such as “Deuces” by showing how they can be commercially viable. You swear that the emails don’t show the validity of promotion. But all of this evidence proves another story. The enforcement of copyright actually is a hindrance to the people it is supposed to help.
What have these takedowns proven? That copyright enforcement is going to help in the bottom line of the RIAA that has asked for it? That the “artists” that you say is promoting this (and again, everyone uses artists but no one can really discuss which artists are benefited directly from these takedowns) wins from the “legal” takedowns?
It probably wouldn’t be so bad but you’ve left out a few “errors†or absolutely ignored them. One is that there have been NO signs of Judge Nagle allowing the domains themselves to have a say in these closures.
That’s not an error, it’s how the legal system works. Judge Nagle’s only job is to read the affidavit and see if there is probable cause for a seizure. After seizure, the domain name owners can move to return the property before trial or present their case at trial.
But the “evidence†which you’ve dismissed tells exactly the effect this has had on the economic landscape of the internet.
That’s a policy argument. It has no place in a warrant, whose only role is to determine probable cause of a specific crime.
First, a bittorrent exodus has occurred. This is all revenue that the US would have collected through taxes. Now? They help to stimulate Europe. They help to stimulate other countries, but not the US.
What? Taxes aren’t collected based on the location of where your domain name is registered.
With the hip hop blogs, they have actually helped to make the music that much more prevalent with songs such as “Deuces†by showing how they can be commercially viable. You swear that the emails don’t show the validity of promotion.
I never said anything close to that. I simply said a warrant is not invalid if it doesn’t include possible defenses — so if, indeed, the owner of the site was authorized to repost those specific song, he would have a defense to copyright infringement; that’s not the job of the warrant, however.
This is a very good piece of work ! Easy enough to read w/o cutting the corners!! Of course I think that a lot of people don’t think that the current copyright protection is not “right” – not from an artistic point of view nor from an economical and even less from a technological perspective.
I think this is also the major contribution of the torrent sharing discussion – to raise the question if the copyright laws are still serving people or if they are essentially tools to generate profits.
Again thanks for the nice piece of explanation !
I’m just gonna repost a comment from the very same Techdirt site, about this very issue.
“The very special agent pointed to a website and called it cocaine, but it was actually a pack of Skittles, and he only thought it was cocaine because the local Ridalin-pusher told him it was….”
Replace a few words and you get
“The ICE agent pointed to a website and called it copyright infringement, but it was actually a hip-hop blog, and he only thought it was copyright infringement because the MPAA told him it was”
Yes, sometimes innocent parties do get caught in investigations but what happened here was a clear violation of the First Admendment, and of prior restraint. You argue that this doesn’t matter, but it does. When doing legal investigations, you’re supposed to do some…I dunno…investigations? As in, if the ICE agent had done his job, he would have realized “Oh wait, its a hip-hop blog, I better not let that get taken down”
I tried to find where you responded to the First Ammendment issue, but all I’ve found is your comments on how copyright law helps to support creators. I understand and, for the most part, agree with the concept, but think you’ve misunderstood the position people are taking with regard to the domain seizures. Even assuming there is some infringement going on, is the government still justified in taking down the original content posted by the site owner (reviews / music discussions) and site visitors (comments, such as this one)? What about *their* First Ammendment rights? Or, as you seem to be saying, do the rights of the creators being infringed trump the rights of other creators commenting on or reviewing the creators works?
On a side note, I think the point Jay is assuming is that if sites have “forgein” domains, it’s also possible their hosting has moved outside the USA as well. This means that the “business” is no longer a US tax paying entity since they’re located overseas. Just another way of reading his post, I guess.
I meant the previous post I had done on the domain name seizures: https://www.copyhype.com/2010/12/feds-seize-domain-names/
I linked to it in the first paragraph, but probably should have linked again. My apologies that it was unclear.
Thank you for the link. I see your explanation, but must disagree with one of your points. By implying “access was still possible via IP address” to mean that access was not denied is misleading at best. Most users (and apparently Federal agents) do not have a clue how most of the Internet works. Imagine a scenario like this:
To get into a local mega-mall, you have to either enter a numerical password that’s difficult to remember or a word that’s easy. Most people will use the easy to remember word and share it with friends so they can get in as well. The local police chief is told by some main street business owners that stores in the mega mall are selling counterfeit goods. After visiting the mega mall and seeing items being sold (which may or may not have been counterfeit), he removes the ability to use the word leaving only the complex numerical password as an option. While there may be a few people that still had the numerical password saved, most will not and won’t even know about the numerical password. The local police have effectively blockaded the entire mega mall on the word of local businesses alone. Yes, technically, there is still access. In reality, a vastly significant majority of the consumers have been cut off from the vendors and vice-versa.
Additionally, there was no substantial investigation of actual wrong-doing. The local police merely accepted the word of one side as true, performed an insufficient verification of facts and acted. While there may have been vendors who were selling counterfeit goods for which action was justified, the remaining vendors who were punished unnecessarily have been harmed. What remedies are available to them? Do they sue the main street business owners for libel/slander? Do they petition the courts for compensation? How can they be made whole again? If they can’t, what does this say about the status of our court system where one side can have such a significant advantage (or weapon) over another?
In the end, I think this whole affair is a horrible waste of my taxpayer dollars at a time when ICE should be focusing on protecting our borders and getting the illegal immigrant criminals* out of our country. To have them spend time performing the seizure and now to waste additional time and money defending them is wasteful.
* illegal immigrant criminal = illegal immigrant who has committed a non-immigration related felony on US soil, i.e. drug trade, car theft, etc.
You said in a comment, ” Judge Nagle’s only job is to read the affidavit and see if there is probable cause for a seizure.” In the body of your article you said, “Are there errors in the affidavit? If so, do they even matter? The answer is no.”
So if the judge is convinced that there is probable cause as a result of those errors and issues the warrant when he wouldn’t have had the errors not been present … you have no problem with that? Justice is served in that case? Even though no charges have been filed against anyone so far?
This reminds me of the money seized by police with the probable cause that anyone caring over $10,000 in cash must be involved in illegal drugs. No charges issued. No trial. You want your money back, prove you’re not a drug dealer.
This link contains several examples: http://archive.newsmax.com/archives/articles/2001/6/27/191414.shtml
” Police stopped 49-year-old Ethel Hylton at Houston’s Hobby Airport and told her she was under arrest because a drug dog had scratched at her luggage. Agents searched her bags and strip-searched her, but they found no drugs. They did find $39,110 in cash, money she had received from an insurance settlement and her life savings; accumulated through over 20 years of work as a hotel housekeeper and hospital janitor. Ethel Hylton completely documented where she got the money and was never charged with a crime. But the police kept her money anyway. Nearly four years later, she is still trying to get her money back.”
In this case the domain seizures are the punishment. If they are ever returned the damage is already done, but I’m wondering if the government will just keep them and never file charges. So I see a warrant issued based on an error-filled affidavit IS a problem … a very big problem. But I’m not a lawyer so I try to figure out what seems fair and reasonable.
I’ve worked as an engineer for about 30 years now and have seen how the patent system is crippling innovation. Part of my new-hire briefing in the last several companies I’ve worked for included a lawyer telling us to NOT read patents because it could lead to treble damages.
Now everything is copyrighted and the term is so long as to be forever. (I think the term will be lengthened each time the “Mouse” faces the public domain.) And it’s not just the actual works that are copyrighted but anything new that might possibly be similar to anything that’s gone before leaves you open to a law suite. (Once lawyers are involved everyone looses except them.) Fair Use is only a defense after you’re sued and so open to interpolation that investors/publishers are scared away before you can even get started.
Well, I’ve ranted long enough that even I’m tired of reading this.
Peace, Love, Laughter,
Rob:-]
I thought the whole seizure process was based on the idea that seizures should happen to protect evidence in furtherance of prosecution, evidence that is likely to be destroyed. Is that not the case, or not the case in this instance?
Also, since it is apparent that the warrant for the seizure is based on the oath and affirmation of the MPAA AND the announcement of the seizures then happened at Disney Headquarters (Disney is a member of the MPAA), doesn’t this cast the entire future prosecution in an unfavorable, biased light?
Should this be taken into account for the issuance of the warrant or during the trail? Or ever?
Some other legal questiions: If the owners of the domains win their cases, the domains are then returned, correct? What happens if prosecution is never brought? I assume the domains are returned, is there a time limit as to how long the state may hold property without bringing suit?
Also, in announcing the seizures Attorney General Holder seems to talk a lot about counterfeit. Does it matter that this is not a case of counterfeit and the official line from the prosecutor is that it is? Did he misspeak or was he confused as to the nature of the domains and his warrant to seize them? Should this be taken into account for the issuance of the warrant or for the trial or for anything?
Thanks for the ridiculous amount of legal analysis you’ve done on these cases, Terry. I wish there were more sites willing to do so.
I thought the whole seizure process was based on the idea that seizures should happen to protect evidence in furtherance of prosecution, evidence that is likely to be destroyed. Is that not the case, or not the case in this instance?
That is one purpose of seizures. The other purpose of seizures is to begin forfeiture proceedings — which is what these seizures were for.
Also, since it is apparent that the warrant for the seizure is based on the oath and affirmation of the MPAA AND the announcement of the seizures then happened at Disney Headquarters (Disney is a member of the MPAA), doesn’t this cast the entire future prosecution in an unfavorable, biased light?
Should this be taken into account for the issuance of the warrant or during the trail? Or ever?
There was no oath and affirmation from the MPAA. The MPAA did provide information during the investigation. There’s nothing biased or unusual about this. The large majority of all criminal investigations are initiated by the victims of crimes, and law enforcement regularly relies on victims and other third parties to assist in investigations.
Some other legal questiions: If the owners of the domains win their cases, the domains are then returned, correct? What happens if prosecution is never brought? I assume the domains are returned, is there a time limit as to how long the state may hold property without bringing suit?
The gov’t can’t hold onto property without filing forfeiture proceedings forever, but there isn’t a specific time period as far as I know. At least one court said 18 months between seizure and the forfeiture complaint was not an unreasonable delay.
Thanks for the ridiculous amount of legal analysis you’ve done on these cases, Terry. I wish there were more sites willing to do so.
Thanks!
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