Last week, Bryan McCarthy, the 32-year-old operator of ChannelSurfing.net, was arrested on charges of criminal copyright infringement. This arrest has once again raised questions about the seizure of domains operated by those that are accused, but not convicted, of copyright infringement related crimes. Critics ranging from bloggers to individual rights advocates to Senators have rightfully questioned the constitutionality of these seizures.
The most serious constitutional issues with the domain seizures arise because the Government does not provide any notice to the domain owners prior to seizing them. One moment, their normal site is up at their web address, the next moment, all that is up at their web address is a DHS/ICE seal.
Without knowing what they have been accused of or having the opportunity to defend their site, the Government has repurposed the owners’ private property.
In order to seize the domain names without notice to the owners, the Government uses a procedure that permits it to bring an action directly against a piece of property used in the commission of a crime –in this case the domain name– rather than the owner. This type of action (called an “In Rem” forfeiture) is not new. In the past, the Government has used In Rem actions for purposes such as an action against an automobile used to transport bootleg whiskey.
An In Rem action does not necessarily require the Government to wait until a court hears both sides and rules that the property has been used for illegal purposes and is subject to forfeiture. Instead, in many cases, the law is written so that all the Government has to do is to sign an affidavit that demonstrates probable cause for the forfeiture, which is signed by a magistrate judge and the Government can seize the property.
To carry out the In Our Sites program, ICE has treated these domains like any other instrument used for common theft and judges have signed off on their affidavits. The U.S. Attorney has publicly exclaimed that website operators like Brian McCarthy are hiding “behind the anonymity of the Internet to make a quick buck through what is little more than high-tech thievery.”
The Government’s view on the domain seizures seems to be overly simplistic and it ignores the fact that a domain is not the same as a gun or a boat used to transport narcotics. A domain is a unique combination of different types of property, including an address, a valuable asset, a brand and a medium for speech.
Any Government seizure of private property raises Constitutional questions. Here, I will outline the five most pressing Constitutional questions that have arisen because of the manner in which the Government has chosen to seize this unique type of property. Continue reading…