Homeland Security's Domain Name Seizure May Stretch The Law Past The Breaking Point

from the taking-the-due-out-of-due-process dept

Tue, Nov 30th 2010 7:32am — Mike Masnick

We had a bunch of questions concerning the legality of Homeland Security's seizure of domain names via its Immigration & Customs Enforcement (ICE) group. The whole thing seemed of extremely dubious legality. And it appears we're not the only ones to think so.

First, it's important to understand exactly what happened. Copycense points us to a useful analysis of how the seizures actually worked. Amazingly, it appears that Homeland Security contracted out the seizures to a private company, immixGroup IT Solutions, which set up the "seizedservers.com" domain that the seized domains now point to. The other bit of useful info is that the seizures appear to have been done directly by VeriSign at the top level domain level. VeriSign, of course, controls the .com TLD, and so Homeland Security appears to have just asked VeriSign to move the domains (with a court order, of course), and it did so.

So that takes care of the technical issues. What about the legal ones? Well, Larry Downes, who knows a thing or two about the legal issues here, has a great blog post detailing some of the serious constitutional questions raised by these seizures. He goes through the details of civil forfeiture law, noting that, while seizure is allowed both pre-trial and post-trial:

pre-trial seizure is premised on the idea that during the investigation and trial, prosecutors need to secure the items so that the defendant doesn�t destroy or hide it.

Clearly that's not an issue with domain seizures. Hell, since it was only the domains that were seized (not the servers and the content itself), there's not even anything to destroy. This is where things get very questionable. Downes notes that many legal scholars have been greatly worried about the whole concept of pre-trial seizures, noting that it appears to "reverse the presumption of innocence, forcing the property owner to prove the property is 'innocent' in some way." While it's true that the domain holders can step in and fight the seizure, as Downes points out, the length of time before any trial occurs makes the whole operation prohibitively costly. And even Homeland Security is acting as if the sites have already been proven guilty, despite the fact that the whole premise of such seizures is that no guilt has yet been established:

If prosecutors drag their heels on prosecution, the defendant gets "punished" anyway. So even if the defendant is never charged or is ultimately acquitted, there's nothing in the forfeiture statute that requires the government to make them whole for the losses suffered during the period when their property was held by the prosecution. The loss of the use of a car or boat, for example, may require the defendant to rent another while waiting for the wheels of justice to turn.

For a domain name, even a short seizure effectively erases any value the asset has. Even if ultimately returned, it's now worthless.

Clearly the prosecutors here understand that a pre-trial seizure is effectively a conviction. Consider the following quote from Immigration and Customs Enforcement Director John Morton, who said at a press conference today, "Counterfeiters are prowling in the back alleys of the Internet, masquerading, duping and stealing." Or consider the wording of the announcement placed on seized domain names... implying at the least that the sites were guilty of illegal acts.

The thing is, it appears that Morton and ICE have clearly gone pretty far in stretching civil forfeiture laws, way beyond their purpose and intention (and limitations), in order to seize these domain names. And it's only going to be a matter of time until some of the holders of these domain names step up and challenge the government on these activities, which appear to conflict with basic due process, let alone free speech issues (since websites are a form of speech, this goes beyond a straight property seizure as well). As Downes notes:

The farther prosecutors push the forfeiture statute, the bigger the risk that courts or Congress will someday step in to pull them back.

It seems like the time for Homeland Security/ICE to be "pulled back" is now. Congress almost certainly won't do it, but hopefully the courts will do the job.

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Filed Under: copyright, domain names, due process, homeland security, ice, john morton, seizures

29 Comments

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Christopher (profile), 30 Nov 2010 @ 7:43am

Congress is too milquetoast to reign in law enforcement period
Since 9/11. I hate to admit that, but it is the blunt truth.

With the hysteria over pedophiles/pedosexuals, the hysteria over terrorism, and now this? The 'due course of law' is becoming more and more suspect in the United States.
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kellythedog (profile), 30 Nov 2010 @ 7:45am

seizedservers.com
Funny how the seizedservers.com site is using google-analytics to see who is being redirected.
Who knows how someone may use that info collected. If the intent was to inform visitors that the domain name was seized, there really is no need to track.
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Dark Helmet (profile), 30 Nov 2010 @ 7:56am

Re: seizedservers.com
Probably just a scare tactic. The SIG/INT technology the government likely has at their disposal would render the need for Google analytics irrelevant, other than to let dirty evil raporists know they're being watched....
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Nina Paley (profile), 30 Nov 2010 @ 7:57am

Information is not property, it is speech.
Information is not property, it is speech.

Pretending it's property leads to insanity like this. Policies built on a rotten foundation will collapse eventually; the heavier the policies, the harder they'll fall, and the more people will be crushed under the debris. It's like a concrete tower built on a foundation cotton candy. Except cotton candy is more structurally robust.
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Anonymous Coward, 30 Nov 2010 @ 7:58am

Re: Information is not property, it is speech.
BUT COPYRIGHT INFRINGEMENT!!!
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Nina Paley (profile), 30 Nov 2010 @ 8:06am

Re: Re: Information is not property, it is speech.
COTTON CANDY INFRINGEMENT!
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Griff (profile), 30 Nov 2010 @ 8:12am

Is it just me ?
What has this actually got to do with the security of the homeland ??
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Dark Helmet (profile), 30 Nov 2010 @ 8:12am

Re: Re: Re: Information is not property, it is speech.
BUT COTTON/CORN FARMING JOBS! JOBS! JOBS!!!!
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Not an electronic Rodent, 30 Nov 2010 @ 8:14am

Re: Congress is too milquetoast to reign in law enforcement period
Pop quiz:
In the statement:
The 'due course of law' is becoming more and more suspect in the United States.
Please highlight the redundant portion of the sentence.

Yes, those of you who answered "in the United States" were correct.
The 'due course of law' is progressively ignored or sidelined in many, if not most, 'free' countries around the world in response to the gnashings and wailings of variously the "moral majority" the "aggrieved poor struggling multi-billion [dollar] companies", governments that need to be seen to "Do Something About All This Crime" and other such sheeple.
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Anonymous Coward, 30 Nov 2010 @ 8:17am

Re: Is it just me ?
now youre catching on.
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Nina Paley (profile), 30 Nov 2010 @ 8:19am

Re: Is it just me ?
It's the Department of Homeland Security Security. They want to keep their jobs. Mo' problems, mo' money.
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Dark Helmet (profile), 30 Nov 2010 @ 8:23am

Re: Re: Is it just me ?
Moe Szyslack.

Ironically, he looks like most of the TSA workers I've seen....
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Freak, 30 Nov 2010 @ 8:25am

Oh, hey . . .
I said that the other day, in the first story's comments section.
Go me, I understood something about US law. Do I take 1d10 sanity loss?
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Freak, 30 Nov 2010 @ 8:26am

Re: Oh, hey . . .
'that' being that the seizure of property pre-trial is to prevent its destruction, (or hiding).
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Nick Dynice (profile), 30 Nov 2010 @ 8:31am

All this does is guarantee the flow of money from the MPAA and RIAA to corrupt government officials for following their orders.
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Chronno S. Trigger (profile), 30 Nov 2010 @ 8:40am

Re: Re: Re: Is it just me ?
Moe, Moe, Moe
How do you like me
how do you like me
Moe, Moe, Moe
Why don't you like me
Nobody likes me.
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Not an electronic Rodent, 30 Nov 2010 @ 8:51am

Re: Oh, hey . . .
Do I take 1d10 sanity loss?
Only if there's a picture of a lawyer with tentacles for a face in the book you read it in.....
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Freak, 30 Nov 2010 @ 8:58am

Re: Re: Oh, hey . . .
Well, no. But the senator from Maine did look an awfully lot like a fish.
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out_of_the_blue, 30 Nov 2010 @ 9:02am

If you didn't object to people being *tortured*,
then I doubt that you're now going to grasp where the country is headed. Quibbling over TLDs seized, indeed. It's the kind of fluff that the MSM puts out instead of substance.
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JonValJon (profile), 30 Nov 2010 @ 9:44am

VeriSign..
ICANN just threw their last glimmer of independence out the window. Time to destroy the current DNS system and start a more distributed one.. hopefully one that doesnt have a single company controlling a majority of the domain names. We all failed on letting it get here in the first place..

A side question.. VeriSign related to VeriChip? There is a frightening thought.. Oh look.. it appears they are already a DHS approved contractor! And the slope gets slipperier..
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Bengie, 30 Nov 2010 @ 9:48am

Obviousness
We should be able to sue individuals in the government for giving these orders. Make the messenger think twice about relaying orders.
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TDR, 30 Nov 2010 @ 10:05am

Just shut down DHS entirely. I can't think of anything good it's actually done, only security theater and cowtowing to corporate interests. It's about time for the reemergence, I think, of something that's been all but forgotten since the Civil War - states' rights and their original purpose which was to keep the central government in check and limited. Particularly, the right of secession. Some are already thinking of it and speaking of it. Vermont and Texas, I know of already. I doubt they're alone, either.
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max (profile), 30 Nov 2010 @ 10:56am

problematic
Domain seizures will prove problematic to the democratic process. I'm sorry to see we have come to this point. There are more productive solutions available but if the "community" doesn't support them and just continues to whine and complain - we can expect more of this........
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Roland, 30 Nov 2010 @ 3:16pm

welcome to the war on drugs
Property seizures, and the idea that property is presumed guilty, have been part of the war on (some) drugs for a long time. This has led to some bizarre cases, like 'US vs An Automobile'. This kind of bullying by government is now a fact of life. It was never about making sense.
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thracian (profile), 30 Nov 2010 @ 5:39pm

Continuity Of Government
Those Who Orchestrated Our Last Major Terrorist Event On September 2001, Already Had A Plan Ready For "Continuation of Government". This COG , Is An Emergency Act That Suspends The United States Constitution,The Bill Of Rights, And The Average Citizen Can Only Guess, If We The Citizens, Of This Great Country, Have ANY Rights At All (beside Being Probed And Scanned For ANY Reason At ANY Time).Good Luck To You, And May Your God Be With You.
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Anonymous Coward, 30 Nov 2010 @ 7:06pm

Re: Continuity Of Government
Someone call the Department of Capitals Punishment.
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nasch (profile), 30 Nov 2010 @ 7:12pm

Re: If you didn't object to people being *tortured*,
Suppression of speech should not be considered quibbling.
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nasch (profile), 30 Nov 2010 @ 7:14pm

Re: Re: Continuity Of Government
Did all the capital letters missing from others' posts end up with him?
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pacelegal, 7 Dec 2010 @ 6:53am

property seizures
Just a very small technical issue but domain names have never been characterised as 'property' by any Court except the 1995 sex.com case, where the nature of a domain name as property was discussed.

However there are legal consequences to such legal distinctions.

However it is property in every other legal sense as you can sell them.

The nature of the right in law though is a revocable license.

However I see it as a 'seizure' in effect without due process.
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