U.S. Gets In on Censorship Action

The United States Immigration and Customs Enforcement, part of the Department of Homeland Security, has seized 82 domain names that it contends are responsible for facilitating IP infringement (and perhaps infringing themselves). The seizures have prompted some outrage, and some head-scratching. The head-scratching has been by lawyers (and normal people) trying to figure out the legal basis for the seizure. If I’m reading the U.S. Code right, seizures are authorized under 18 U.S.C. 2323(a), and 18 U.S.C. 981(a)(1)(A) and (C), which authorizes civil seizures of property that is used in a violation, or attempted violation, of 18 U.S.C. 1956(c)(7). If you’re bored enough to trace to 1956(c)(7)(D), you’ll see that it does in fact mention criminal copyright infringement: 18 U.S.C. 2319. Now, we’ve got civil seizure of items used in crime, so that’s weird enough. What is even more strange is that the government doesn’t have to provide notice to the domain name owners if it files a civil complaint against the property – that is, against the domain names (an in rem proceeding for you Civ Pro nerds). (This assumes I’m reading 18 U.S.C. 983(a)(1)(A)(ii) properly – no sure thing.) While the government still bears the burden of showing that the seizure is proper – 983(c)(1) – it also gets to lock up the domain name until the matter is resolved.

OK. That was some painful statutory lifting. The larger – and to me more interesting – question is about censorship. The U.S. government is grabbing domain names to prevent users from reaching content it views as illegal. Not content that has been adjudicated illegal, as far as we know – content that is alleged to be illegal. To content owners, and probably to ICE, it looks only natural that we’d prevent people from reaching information they view as stolen, or counterfeit. But it’s natural to China to censor human rights sites. Or Wikileaks, for that matter. Legitimacy in information control on-line rests, I’ve argued, on being open, transparent, narrow, and accountable. The problem here is twofold: narrowness, and accountability. First, the accountability analysis looks to the procedures by which censorship is carried out. Given that the government can seize sites without notice, and with a showing only in an ex parte hearing (to obtain a warrant), this is problematic in this case. Moreover, the government gets the benefit of the doubt: if they make a mistake, well, too bad for the domain name owner, whose URL is out of commission until there’s a hearing. Second, these seizures aren’t narrow. They’re both overbroad and underbroad. The domain name seizures are underbroad because, surprise surprise, there are more than 82 sites out there offering copyrighted content. They’re overbroad because seizing a domain name blocks licit along with illicit content. It fails to distinguish between content used in an infringing way, and content in a lawful way (such as fair use). It’s true that many of these Torrent sites traffic primarily in infringing materials, but the Supreme Court let the VCR off the hook for secondary copyright liability when less than 10% of taping was lawful. Domain name seizures are a blunderbuss for a problem that needs a scalpel.

Every country in the world believes that some material on the Net qualifies inherently for censorship. It’s obvious! In this respect, we’re no different from China. So, we should give up pretensions of American exceptionalism for information controls – for us, it’s IP; for Saudi Arabia, it’s porn; for France, it’s hate speech. Only the quality of the legal process differentiates censors. And with these seizures, I think there’s much to worry us in the (lack of) process…

2 Responses to “U.S. Gets In on Censorship Action”

  1. Your statement that the government “gets to lock up the domain name until the matter is resolved” appears to be untrue.

    Assuming I’m reading your cited statutes correctly (and this is not an area of law I know), looking at 18 U.S.C. 983(f), a claimant may actually request immediate release, if certain conditions are met. If the agency does not respond to such a request within 15 days, the claimant can go straight to district court. A court then has 30 days to decide. If the court orders immediate release, this doesn’t resolve the in rem proceeding, but it allows use of the property while the proceeding is undertaken.

    You also decry the ability of the government to evade giving notice under (a)(1)(A)(ii) but that provision actually requires “notice . . . as required by law.” So what is required by law? This isn’t my area, but you seem to assume there is no requirement, simply because you can’t find it in Section 983. You should read the notice rules “as required by law” before you jump to such a conclusion!

    Now, I did some digging and found FRCP G, which says that it “governs a forfeiture action in rem arising from a federal statute.” If you were to read FRCP G, you’d learn that “direct notice” is probably required for the domain name owners. In other words, the reason notice is not required under 983(a)(1)(A)(ii) is because it is adequately covered in FRCP G.

    Let me know what you think, because I haven’t ever read any of this before today.

  2. Seizing domain names like this is wrong! People should be free to express their opinions no matter what they are, without seizure. That’s what the U.S.A. was founded on and we should continue to support an open information world network. Those who have power want to control those who don’t have it, and that is disgusting.

    Thank you for writing this article. I will be sharing it. I don’t know what else can be done, but I’d like to make a plea to anybody who has the power to do so to protect freedom of speech!