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US Domain Seizures Are Unconstitutional

Great discussion of the routine breaches of constitutional protections by ICE agents who are more interested in preventing grandma from downloading a Friends episode than preventing the exploding Mexican drug flow. Due Process has been given many exceptions over the years but none of those justify the seizures. Why does the US government target the little guys? Take a look at top contributors to the Senate Judiciary committee.

( "1. The Government Seizes The Domains Without Prior Notice And Hearing.

...The complication comes from the fact that, over the years, the courts have carved out certain limited exceptions to the pre-deprivation notice and hearing requirement. Although the Government has proceeded as if the domain seizures fit into one of those exceptions, it is highly questionable. The Supreme Court has explicitly limited those exceptions to “extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.”

...The Government’s justification for the pre-hearing seizure is not made clear by its affidavits. In its November 2010 affidavit, the Government was claiming that the seizures of domains that provide links to copyrighted material were necessary to prevent third parties from “acquiring the names and using them to commit additional crimes” and “continuing to access” the websites.

...On balance, ownership of a domain is too important a private right and preventing copyright infringement is not an important enough public goal to justify seizure without prior notice or hearing...

2. Seizures of Protected Speech Without a Hearing Violates The First Amendment.

...Generally, the First Amendment does not permit prior restraint, which is when the Government censors material before it is distributed. The Supreme Court has deemed prior restraint as “the most serious and the least tolerable infringement on First Amendment rights.” Instead of prior restraint, courts typically require the Government to allow the publication of the speech and then to sanction the offending party afterward.

...As Techdirt points out, like with due process, the Government must provide prior notice and hearing before it restrains “potentially protected speech, with the intent to take material out of circulation.” Seizing an entire domain has the hallmarks of a prior restraint because in doing so, ICE is indiscriminately taking both infringing and non-infringing material out of circulation.

On the other hand, supporters of the constitutionality of ICE’s actions, such as Terry Hart, point out that the Supreme Court has permitted prior restraint of certain items, such as obscene materials or threats to national security. However, even these supporters recognize that these exceptions are premised on the Government ensuring a prompt judicial determination...

3. There Is No Concern That The Accused Will Flee With Their Domains.

Certain constitutional rights sometimes take a backseat to crucial practical considerations, such as the Government’s concern that property involved in a crime will disappear if it is not immediately seized... A domain can be sold, but it cannot be moved or concealed from the Government without defeating the purpose of having a domain in the first place.

4. There Is An Unacceptable Risk Of Wrongful Seizure.

ICE also unwittingly made its critics’ point last month when it mistakenly seized the domain names of 84,000 websites. The Government had falsely accused the sites of child pornography. This type of large-scale, disastrous mistake illustrates the constitutional deficiencies of the seizures.

...In many ways, the whole point of due process is to protect citizens from wrongful Government action. The Supreme Court has explained that the right to notice and a hearing prior to a government seizure is for the purpose of enabling an individual “to protect his use and possession of property from arbitrary encroachment-to minimize substantively unfair or mistaken deprivations of property.”...

5. Targeted Sites Are Not Given An Immediate Opportunity To Reclaim Their Domain.

...Most exceptions to due process and freedom of speech restrictions are premised on the promise of an immediate opportunity to defend yourself after the Government has taken your property. Operation In Our Sites has included no such immediate hearing. In fact, according to reports, weeks after the November seizures, site owners were still waiting to learn what it is that their sites had been accused of.

The lack of an immediate opportunity to reclaim a domain is not the only problem. Even if a post-seizure hearing occurred within hours of the seizure, it may be too late to truly compensate a domain name owner’s loss caused by an erroneous seizure...

Even though these websites were completely innocent, will users come back to sites that the government has publicly accused of child pornography?"


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