Copyright Enforcement Tail Wags Internet Dog, Cont’d; or, What the Hell Ever Happened to Due Process?

Some of you may recall that a month ago or so, I posted a comment here about a bill making its way through the Senate, the Combating Online Infringements and Counterfeits Act (“COICA”), that would allow US courts to “seize” domain names belonging to US or foreign websites simply upon a charge, by the Attorney General, that the site was “primarily devoted” to infringing activities. I was the author of a law professors’ “Letter in Opposition” to the bill, which garnered around 50 co-signatories, based largely on the grounds that these seizures would represent “prior restraints on speech” under the First Amendment, and were blatantly unconstitutional.

Whether the Letter had any effect is not clear – but the bill, which passed through the Judiciary Committee without opposition, has been stalled by Senator Wyden of Oregon, who has put a “hold” on it.

That’s the good news. The bad news is that the US government apparently believes it has the power to do what COICA purported to authorize it to do even without new statutory authority. Over the past weekend, as many news outlets have reported, US Immigration and Customs Enforcement (“ICE”) — a division of the Department of Homeland Security — seized over 80 domain names being used by websites involved in online file-sharing (such as torrentfinder.com, a site pointing to other sites enabling use of the BitTorrent file-sharing protocol) and sale of allegedly counterfiet goods (e.g., louisvuittonoutlet.com, scarfsonline.com). [The ICE Press Release describes the actions in somewhat more detail; the list of seized domain names is here]

It’s not entirely clear, from the news reports, exactly how these “seizures” were effected. It appears that ICE obtained judicial warrants under the Civil Forfeiture provisions of 18 USC 2323(a), which makes the following property “subject to forfeiture to the United States”:

(A) Any article, the making or trafficking of which is, prohibited under section 506 of title 17 . . . [prohibiting "willful copyright infringement"];
(B) Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of an offense referred to in subparagraph (A); or
(C) Any property constituting or derived from any proceeds obtained directly or indirectly as a result of the commission of an offense referred to in subparagraph (A).

The warrants were apparently served on Verisign, the “registry” for several top-level domains (including .com and .net), ordering Verisign to transfer the domain names in question to the US government.

It’s an outrage. To begin with, there’s the bizarre spectacle of the Department of Homeland Security – which, last I looked, had some important issues before it that actually relate to “homeland security” — expending time and resources to protect purely private interests (of. e.g., the Louis Vuitton handbag manufacturers and Warner Brothers’ Records). And the operation perfectly illustrates the objections we raised in the COICA Letter: 80 websites — many of them operating overseas — have now been prevented from speaking to US citizens even though the website operators, whose domains were seized, had no notice or opportunity to respond to the charges against them (and to argue, for instance, that they are NOT infringing copyrights or trademarks), no adversary hearing, and certainly no adjudication before a neutral, that anything unlawful is going on at these sites, only an affidavit to that effect submitted by the ICE.

I’m no expert in forfeiture law, to be sure — but the notion that the government can seize property before there’s been anything like a true hearing on the matter of unlawfulness of conduct strikes me as truly appalling. As I wrote in that COICA Letter:

At a time when dozens of foreign governments have dramatically stepped up their efforts to censor Internet communications in order to suppress legitimate dissent, to marginalize religious minorities, and to prevent citizens from obtaining information about the world outside their borders,2 the United States has always been a voice – often the only voice – opposing these efforts. Our ability to defend the principle of the single global Internet – the Internet where all of humanity has equal access to knowledge and ideas, the Internet that looks the same to, and allows free and unfettered communication between, users located in Shanghai and Seattle and Santiago, free of locally imposed censorship regimes – will be deeply compromised by [seizures of this kind], which would enshrine in U.S. law for the first time the contrary principle: that all countries have a right to insist on the removal of content, wherever located, from the global Internet in service of the exigencies of local law. Nothing limits the application of this principle to copyright or trademark infringement, and nothing limits the application of this principle to actions by the United States; when all countries exercise this prerogative in support of their local legal regimes, as they surely will, we will have lost – or, more properly speaking, we will have destroyed – the single global interconnected communications platform that we have built over the past several decades and that holds out so much promise for the improvement of human society across the globe.