creation of the nation: COICA

David Makarewicz, Contributing Writer
Activist Post

This site has been generally critical of recent United States policy toward copyright issues. We have expressed discomfort with the Obama Administration's statements in support of Internet freedom, which seem to clash with a proposal to wiretap suspected infringers and the introduction of COICA legislation.

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.

Although we question the Constitutionality of the seizures, these issues deserve a vigorous debate that presents the well-reasoned arguments of all sides, including those that are convinced that the Government seizures are right and legal. Unfortunately, last week, Terry Hart of Copyhype, who has been a vocal defender of the domain name seizures, chose to go beyond that defense to question the motives of the critics of the domain name seizures such as SitesAndBlogs.com and Techdirt.comand attempted to dismiss the importance of the Constitutional issues we have raised.In his article, ICE Seizures Criticism: Magic Words, Hart doubles down on his pro-seizure beliefs, again arguing that the seizures are Constitutional and can be a "valuable tool for minimizing the harms of piracy." However, Hart also went one step further and accused critics of the seizures of failing to provide "real arguments" and hiding behind Constitutional catch-phrases like "due process" and "prior restraint." Hart said:

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.

Our article, entitled Arrest Of Website Operator Renews Debate Over Constitutionality of Government Domain Seizures, was one of the criticisms of the seizures that Hart takes issue with. In the article, we discuss five Constitutional issues that arise because the Government has taken private property, and arguably suppressed speech, without prior notice and a hearing.

Hart's implication that our article is one whose argument consists of a hysterical mantra of repeated magical phrases is unfair. Of the nearly 3000 words in our post, the phrase "due process" only appears twelve times and "prior restraint" only seven.

Before we get to our detailed response to Hart, it is important to make one thing clear. By stating that we do not believe that the Constitution allows the Government to take private property, which may include protected speech, without a judicial hearing, we are not favoring the copyright infringers over the copyright holders or saying that the Government should not enact laws that protect its citizens' copyrights. These are separate issues, worthy of their own debate.

If a person believes that the Government should not torture and kill a suspected murderer, that does not mean that person favors murderers over victims. It merely means that they believe that even when confronted with wrongdoing, there are limits to the actions the Government can take against its citizens. The same is true here. We can be troubled by the effects of copyright infringement and still believe that the Constitution does not permit the Government to seize domains in the manner it did.

Hart divides his article into the reasons he believes the domain name seizures are acceptable under the Fourth, Fifth and First Amendment. I will take each of these in turn.

FOURTH AMENDMENT

Hart begins by arguing that there is no Fourth Amendment problem with the domain name seizures because they were accompanied by warrants issued upon probable cause. The Fourth Amendment states:

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

Other commentators have suggested that the factual and legal errors in the Government's affidavits create a Fourth Amendment problem. Although it is a worthwhile argument and I am troubled by the poor quality of the affidavits, I ultimately think that the Fourth Amendment requirements are met. The warrants issue upon probable cause and a sufficient description. That is probably enough to satisfy the Fourth Amendment.

FIFTH AMENDMENT

Although the domain seizures marginally pass under the Fourth Amendment, the Government's actions do not satisfy Fifth Amendment due process protections.

The Due Process clause of the Fifth Amendment guarantees that "[n]o person shall ... be deprived of life, liberty, or property, without due process of law." Due process typically means that individuals must receive notice and a meaningful hearing before the Government takes away their property.

Hart first argues that the Government provides due process for the ultimate forfeitures (as opposed to the initial seizures) because of the availability of notice and a hearing. Here we generally agree. Nothing has yet convinced me that the forfeitures themselves run afoul of the Fifth Amendment. However, where Hart and I part ways is his next argument that the seizures of the domains without prior notice or a hearing satisfy due process requirements. He argues:

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 indispensable 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.

Hart then cites a series of cases that supposedly support the Constitutionality of the seizures despite the lack of notice or hearing. SitesAndBlogs is not a lawblog directed at lawyers, so I do not want to bore my non-lawyer readers by forcing them into the middle of a case-for-case exchange. However, with complex issues such as this, the devil is in the details and the details are in the case law that Hart cites to support his arguments.

For example, Hart points to the US v. E-Gold and US v. Bajakajian cases to support his claim that "the question of whether the statutes used to seize these domain names requires a pre-seizure hearing has been answered." A powerful statement that could end the conversation if the cases, in fact, clearly supported the Government's right to seize domains without a pre-deprivation hearing. A review of the courts' decisions in these cases shows that they do not go nearly that far.

The E-Gold case that Hart cites involved very different circumstances than the domain name seizures. In E-Gold, the Government seized $1,481,976.38 from a defendant allegedly involved in a money laundering scheme without providing a pre-deprivation hearing. The D.C. Court of Appeals reiterated the rule that a Government taking prior to notice and a hearing is not the norm, but is limited to "extraordinary circumstances." However, the Court found that seizing money from a money launderer before he can spend or hide the funds is the kind of extraordinary circumstances that permit the Government to seize the funds prior to a hearing. The Court stated:

It may well be that in the case of a criminal proceeding in which the government may ultimately have rights in the property at issue, immediate protective measures must be taken in order to prevent dissipation or deterioration of the assets before the time for trial is reached.

The Court permitted the seizure of E-Gold's funds without a hearing because of "the ease of disposition of valuable assets." That simply does not apply to the domain seizures.

Unlike money in the hands of an accused money launderer, immediate protective measures did not have to be taken in order to prevent dissipation or deterioration of the domain names before a hearing. The Government had every reason to believe that if it notified E-Gold that it was scheduled for a hearing in two weeks, that E-Gold would move a substantial portion of the money around so that the Government would not be able to take control of the $1,481,976.38 after the hearing.

Did the Government have any reason to believe that if it notified the owners of the seized domains that a hearing was scheduled in two weeks, that the domains would not be just as easy to seize after the hearing?

You can not decrease the value of a domain like you can with other assets. You also can't move and hide a domain the way that you can with money, drugs, cars or boats. If the Government has some reason to believe that a targeted domain will somehow be degraded or hid in a way that I have not conceived, shouldn't the Government at least have to articulate that it has reason to believe that the owner of the particular domain intends to hide or degrade the domain before dispensing with normal due process protections?

The other major case that Hart relies on is the Bajakajian case, in which the Supreme Court ruled that a customs seizure of a large sum of money did not violate the Eighth Amendment, which states that "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." It might be interesting to debate whether the severe and permanent damage a DHS seizure imposes on a website violates the Eighth Amendment. However, it is not a point that most critics have made in the past and it is not immediately clear how a case analyzing the Eighth Amendment relates to the Fifth Amendment due process issue.

Due process is not a catch phrase. Due process is there to protect citizens from Government oppression. And due process, in the form of a predeprivation hearing, should only be suspended on the rarest of occasions. As the Supreme Court reminded the Government in the 1991 Doehr case, "fairness can rarely be obtained by secret, one-sided determination of facts decisive of rights . . . .[And n]o better instrument has been devised for arriving at truth than to give a person in jeopardy of serious loss notice of the case against him and an opportunity to meet it."

Doehr also demonstrates that the trend is toward strengthening due process protection. In Doehr, the Supreme Court struck down a procedure that allowed a prejudgment attachment of a defendant's property. Even though the procedure had been permitted by lower courts for decades, the Supreme Court ruled that a defendant's property could not be attached without prior notice and a hearing, unless a specific showing could be made that a particular defendant was intending to put the property in jeopardy. I see no reason that the same Fifth Amendment protection should not granted to the owners of websites accused of copyright infringement.

FIRST AMENDMENT

Like his due process claim, Hart's dismissive claim that critics have hid behind the words "prior restraint" is unfair.

Hart concedes that the seizure of expressive materials without a prior judicial determination that they were not protected by the First Amendment is traditionally an unconstitutional prior restraint. However, he attempts to claim the domain name seizures are Constitutional by arguing that the domain names are not speech, some First Amendment protections are limited to obscenity and that it is permissible to suppress non-infringing speech with infringing speech. Although the freedom of speech issue is a closer call than the due process issue, I disagree with his analysis.

The First Amendment's protections are powerful, but not unlimited. In fact, copyright law, by its very nature, restricts speech. Additionally, the law is fairly clear that speech that infringes another's copyright is not protected by the Constitution. However, at the time of the seizures, no hearing has been held and no Court has yet determined that the contents of the website are infringing. Such a determination might be months or years away. Thus, the sites should be afforded full Constitutional protection.

Hart first argues that "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." In other words, Hart is arguing that the domain names are not speech, so the Government has not suppressed speech by taking the domain names.

It is fair to say that a domain name itself is not speech. Hart is also correct that once you take away the domain name, the content of the website containing the speech still exists on a server. However, seizing a domain name places a wedge between the audience and the speech, so I do not agree that the domain names should not be treated as Constitutionally protected speech.

If the domain names can somehow be separated from the speech on the servers they are connected to, how can the Government seize the domain names based on a claim that some of the speech on the servers infringes on copyright? In the affidavit for last month's sports streaming site domain name seizures, ICE states:

There is probable cause to believe that the SUBJECT DOMAIN NAMES are subject to seizure and forfeiture, pursuant to 18 U.S.C. §§2323(a)(1)(A)-(B) as property used or intended to be used to commit or facilitate the commission of criminal infringement of copyrights in violation of 18 U.S.C. §2319.

In other words, in order to get the magistrate judge to sign off on the domain name seizure, ICE attests that the domain names are an integral aspect of the speech that it believes to be illegal.

Neither the Government nor Hart can have it both ways. Either the domain name is an integral enough aspect of copyright infringement that it can be seized and it gets First Amendment protection, or a domain name is not an integral enough aspect of copyright infringement to be considered protected speech, but then the Government can't seize the domain name in the first place.

Since the seizure of the domain names interferes with speech that a court has not yet found to be illegal, the seizure is a prior restraint. Hart attempts to minimize critics' claims of prior restraint by including a partial quote from the Supreme Court. Hart states:

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.”

With these words, the Court was not weakening a citizen's ability to claim a Government prior restraint. The Court was merely reminding litigants that free speech protection, even as to prior restraint, is not completely unlimited. This is not disputed. However, it is important to note that the Court also reminds the Government that "the limitation is the exception; it is to be closely confined so as to preclude what may fairly be deemed licensing or censorship."

The Kingsley Books case primarily stands for the proposition that the Government can limit free speech protection only on the very rare occasion that the Government has created a series of precise rules to ensure that their actions will not restrain future speech that has not yet determined to be illegal. The case is also limited to restraining obscene materials (which the Court does not consider protected speech) where the Government assures that the obscenity issue will be "promptly tried and adjudicated."

Similarly, in Freedman v. Maryland, the Court stated that any restraint imposed in advance of a hearing must be "for the shortest fixed period compatible with sound judicial resolution . . . [and] the procedure must also assure a prompt final judicial decision." Typically, this means that the time between a seizure and a hearing, should be measured in hours, not days or weeks.

The domain name seizures do not involve obscenity and the Government has not put in place procedures that assure that future speech will not be restrained or that a determination of copyright infringement will be promptly tried and adjudicated after the seizure. Thus, the domain name seizures do not fit within the narrow exception to the ban on prior restraint.

Even this narrow prior restraint exception was unacceptable for four of the Justices in Kingsley Books, who dissented from even allowing that. In his dissent, Justice Douglas warned of the dangers allowing the Government to issue a decree against a publisher in secret. He said:

We tread here on First Amendment grounds. And nothing is more devastating to the rights that it guarantees than the power to restrain publication before even a hearing is held. This is prior restraint and censorship at its worst.

Justice Douglas was not just hiding behind "magic words" to argue it is unconstitutional for the Government to restrain speech that no court had yet ruled to be illegal. He recognized that even if the Government is fighting a well-intentioned fight against obscenity or copyright infringement, it can not be allowed to bypass the court without becoming an oppressive censor.

Modern Constitutional experts agree with Justice Douglas. Professors Mark Lemley and Eugene Volokh wrote that a court should not be allowed to issue any injunction that suppresses speech without a hearing and a high burden of proof, such as "high probability of success on the merits" because "oversuppression of speech is considerably worse than underprotection of the government interest."

In his article, Hart also seems to imply that obscene materials would be given more First Amendment protection than the speech within the seized domains. The opposite is true. In fact, obscenity is one of the only exceptions to prior restraint rules that the Courts have accepted, in addition to important interests like national security matters, incitements to violence and overthrow of orderly government.

Despite this, Hart claims that since the domain name seizures involve alleged copyright infringement, rather than obscenity, the Government should have a broader right to take the property without a hearing. He states:

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.

Here, Hart is referencing the US v. Kimbrough case, in which the Supreme Court found that a warrant did not need to be more specific in order to search through a Defendant's possessions. However, this was not a First Amendment case. The point of limiting the search to factual, objective determinations is that the officers need to be able to determine whether or not the items they are searching and seizing are the same items that are described in the warrant. This is primarily a Fourth Amendment issue that does not discuss prior restraint.

Fortunately, despite Hart's implication, the Kimbrough Court was not saying that the Government can suppress speech without a hearing as long as the police are capable of unilaterally determining whether or not the speech is protected by the Constitution. It is one thing to allow the police to determine what items fit the description of a warrant; It is entirely another for the police to be empowered to determine whether or not the items are protected by the First Amendment.

Even if the First Amendment was stretched so far that suppressing an item containing speech is Constitutional if it is based on a single factual determination (such as the age of a child in a picture), these domain seizures would still not be permissible. Application of copyright law to the Internet can not be simplified to a single factual question that the police can answer without the court. For example, what is the factual determination that conclusively demonstrates that a website that provides links to another site that has streamed copyrighted sporting events in the past is not Constitutionally protected speech?

The courts have not even had a chance to fully consider many of these particular issues. In fact, even the DHS does not know exactly how an act like streaming fits in the law, which is why they have asked Congress to clarify whether or not certain Copyright laws include streaming. With this level of uncertainty, it would be madness to compromise the general rule that a Government suppression of speech, prior to a judicial determination, is an unconstitutional prior restraint.

Mike Masnick at Techdirt has delivered his own acid-laced response to Hart's defense of the Government's actions. In his article, Defending The Indefensible: Lawyers Who Love Loopholes Ignoring Serious Constitutional Issues In Domain Seizures, Masnick does a nice job articulating the broader policy reasons that the United States Government can not be permitted to have this dangerous weapon at their disposal. He says:

We've already seen governments in other countries use questionable copyright claims to stifle the speech of critics. And it's not difficult to see how this could happen in the US as well -- especially given the recent domain seizures. Considering the vast number of perfectly legal sites seized, how hard would it be for political operatives to target critical sites using a similar "copyright" claim? Not hard at all. And that's why we protect our First Amendment rights quite strongly.

Masnick is absolutely right. That is why this issue matters. Virtually every site that questions the Government has probably had part of an article or a picture that is arguably a copyright violation (or has at least linked to a site that does.) Only the magic words of the Constitution prevents the Government from having the power to take down Techdirt and leave Copyhype standing.

David Makarewicz is an attorney practicing internet law concerning privacy rights and copyright defense for websites and blogs. Visit Dave at Sites and Blogs to keep up with breaking Internet news.

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