Just Because A Judge Signs A Warrant, Doesn't Make It Legal...
from the just-saying dept
One of the regular "defenses" we've seen in the comments for why Homeland Security's seizures of various domains -- including ones that have substantial protected speech -- are "legal" is because a magistrate judge signed off on the affidavit filed by Homeland Security and the Justice Department. Of course, that's not necessarily true, as it appears that the magistrate judges in these cases failed to abide by the prevailing case law that requires a higher standard of proof than was provided by Homeland Security, but we'll leave that discussion for another day. A separate point is that just because a judge signs off on it, doesn't make such things legal.As an example of this in a somewhat different context, Julian Sanchez points us to the story of a San Francisco pot bust gone wrong. In this case, the San Francisco police filed for a warrant to search 243 Diamond St. for drugs and associated proceeds for drugs. The warrant described the address as a "two-story, one-unit" building, and the officer claimed he had staked it out for two days and two nights.
It turns out that 243 Diamond is neither two stories, nor is it a one-unit building. It's three stories and two units, and the upper unit (the one raided by the SFPD) happens to be rented to a guy named Clark Freshman... who also just so happens to be a law professor. He told the SFPD and DEA agents who raided his place that they were breaking the law, and they "laughed at" him. Except Freshman may get the last laugh, as he's planning to sue the government. The article quotes another lawyer saying that in similar cases "people have sued and collected substantial settlements" and noting that "whomever is representing the government better get out his checkbook."
While not quite the same, there do seem to be a fair number of similarities with some of the domain seizures. In both cases, the affidavit filed had some very serious errors -- the types of errors that shouldn't have been made. In both cases -- especially with the mooo.com seizure -- perfectly innocent people were severely impacted by these mistakes in the process. Just because a judge rubber stamps a warrant, it doesn't automatically make that warrant legal.
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Filed Under: due process, warrants
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They should have known he was a lawyer...
Also, a signed warrant is no more legal than a cop firing up the lights momentarily so he won't be inconvenienced by a stop sign. It's still illegal. It's just that the average citizen doesn't have the jurisdiction to call them on it.
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Re: They should have known he was a lawyer...
Having just aced criminal justice this semester, that's legal.
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Re: Re: Re: They should have known he was a lawyer...
I have no idea if the ticket was payed or if it was just to make the citizen go away, but the fact that the first cop was ticketed suggests that it's illegal in the US as well.
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Re: Re: Re: Re: They should have known he was a lawyer...
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Re: Re: They should have known he was a lawyer...
I've thought about parking with a camara at 4pm and video taping it. Quite literally I've seen them burn through 3 redlights and just turn off their lights and turn on their left blinker and pull into sonic.
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Re: Re: Re: They should have known he was a lawyer...
Especially when they are doing illegal, unethical and nasty things.
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Re: Re: They should have known he was a lawyer...
first, it varies by state and local law as to when they should and should not use lights.
second, i do not for one moment believe that you aced anything beyond cheetos eating 101.
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Re: Re: They should have known he was a lawyer...
LMFAO. By "aced" did you mean you only scored 1 point?
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Re: They should have known he was a lawyer...
Does he get bonus points for using it where 'whoever' would have been more appropriate? More formal, more better!
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Re: They should have known he was a lawyer...
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On a similar tangent...
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I hate these cases
1) He loses after tax payers pay for a successful defense that actually could be used to take away some of our rights
2) He wins - and tax payers pay for this to go away
Nothing ever happens to the people that actually did something wrong and our taxes are misdirected at something totally useless.
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Re: I hate these cases
You don't expect the government to punish _itself_, do you?
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Re: I hate these cases
"Freshman ...pledged to sue until "I see [the agents'] houses sold at auction and their kids' college tuitions taken away from them. There will not be a better litigated case this century."
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Re: Re: I hate these cases
If this was a case of illegal search and seizure, which it appears to be, and the officers should have known it was an illegal search and seizure, the officers involved should be sued. California law (and the 4th Amendment) only protects officers who are acting in accordance with the law. If they in fact broke the law, I hope they (the officers involved) are taken to the cleaners (since they make every police officer out there look bad.)
This is taught in Search and Seizure classes in every POST certified law enforcement academy across California. It is the responsibility of the officers to assure that the Search Warrant is valid, accurate, and correct before acting on it. If you have a search warrant which has anything that is incorrect, the search warrant is invalid and must be fixed. If the warrant says the building is a two story building, it better be a two story building! Come on...it only takes a couple minutes for the duty judge to sign a new warrant. The laziness...it burns.
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Re: I hate these cases
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Got curious on they guy
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Common Sense and Professionalism
Any sensible professional would have apologised and left immediately. Instead they wasted a large chunk of their own time putting an entirely innocent member of the public through a pointless ideal - whilst real criminals carried on unimpeded.
Police officers and others with similar authority are meant to acquire some skill in judging innocence and guilt so they don't waste their own time like this. Seems this lot should be sent straight back to the training academy.
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Re: Common Sense and Professionalism
whoops - a pointless ordeal
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Re: Re: Common Sense and Professionalism
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When the officers saw that the building did not match the warrant, they likely should have stopped at that point. Going forward was a very bad choice. I wish the professor luck in his legal actions, but I think that punishing the officers children seems more than slightly vindictive (and likely to get him in legal trouble as well).
However, in all of this, it is very hard to draw a parallel to the domain issues. I am sure the moooo.com warrant will be revealed at some point in the future, and will be shown to valid on it's face (which is pretty much the standard).
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You think its going to turn out to be legal to seize 84,000 website domains that had NOTHING to do with whatever laws were broken by a FEW of the domains? Really?
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It wasn't 84,000 domains. It was one.
Until you can understand that basic concept, the rest of this is probably beyond your grasp.
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Hey AJ, I see you're back to tell some more lies. I knew you would be.
The domains were all registered under their parent domain, as domains are.
Until you can understand that basic concept, the rest of this is probably beyond your grasp.
We can understand that you seem to have a real problem telling the truth nowadays. But, that's typical for your type.
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When you register a domain (moooo.com) you do so with a registrar, who has an agreement with the owner of the TLD (top level domain, in this case .com, held by Verisign).
third level (and fourth level and so on) are not actually registered. They are only created by making a DNS entry. horse.moooo.com is only a DNS record, which points to an IP. It isn't registered anywhere, there are no direct fees to pay, it is a private contact between mooo.com and their users. There is no public registry, there is no oversight by a TLD or ICANN. You can create an unlimited number of third level domains (limited only by technical limitations of DNS software and browsers, which I think limits to 255 characters).
So before you claim anyone is not telling the truth, perhaps you might want to learn a thing or two.
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To most laymen, the domain/subdomain is akin to a zip code and DHS/ICE took down the whole zip code instead of the single business accused of illegal activity. The actual legality or ownership means nothing to the average person.
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Effective much?
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Sure they are. If mooo wants to let other people sell names under their domain and set up an accreditation process for third party registrars, they're perfectly free to do so, just as with Verisign and com. Or they can just register them directly themselves, which is what they've chosen.
What you're basically saying is that there is no such as a registrar for names under .co.uk, for example. I say you're full of it.
So before you claim anyone is not telling the truth, perhaps you might want to learn a thing or two.
I've been involved with this stuff as a network engineer for many years and know pretty well how it works. I think maybe you should take your own advice. You seem to be just making stuff up to suit your position, and that is indeed what people call "not telling the truth".
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Good to know.
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There's nothing like shutting down a domain for 0.001% of its content to illustrate why shutting down websites with nothing more than a judge's rubberstamp is a really bad idea. Shutting down domains containing protected or potentially protected speech should require a trial and establishment of guilt. The first amendment is important enough that nothing less than that should ever suffice.
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By that reasoning, mooo.com isn't a domain either, but a just subdomain under com and taking down all of com would be just "one domain".
There's nothing like shutting down a domain for 0.001% of its content to illustrate why shutting down websites with nothing more than a judge's rubberstamp is a really bad idea.
Yet, they did so and the very same excuse would justify shutting down com as well. The difference is that there are some very wealthy and politically well-connected subdomains under com and ICE wouldn't dare step on their toes. So by not shuttind down com, ICE is admitting that it doesn't enforce the law equally or fairly.
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You assume that upon arriving at the location, the officers bothered to make sure that the building matched the description in the warrant. The only thing they matched was the address.
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I agree completely. The parallel here is a huge stretch.
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Unfortunately, with asset forfeiture laws the way they are in many states, where the police departments keep 100% of the property seized regardless of the outcome of the criminal trials (if any at all), the motivation to continue is huge, because all this increases the departments funds and therefore increases individual salaries of the officers.
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Cop2: Dude, shut up. We can get a new couch for the break room out of this.
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http://www.wxyz.com/dpp/news/local_news/investigations/exclusive%3A-state-police-caught-on- tape-during-drug-raid
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If it's any consolation, your comment would have been very funny if it wasn't so damn close to the truth.
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Legal?
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Re:
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Not above the law
This is what is wrong with the system. They believe that by being part of the law that they are above it or separated from it. That the laws they are enforcing are completely infallible and just. That because I'm a cop or a judge anything and everything I say must be adhered to "or else".
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As the Nazis found out, just because it's an "order" doesn't mean they have to do it. They still have a responsibility to their fellow man to ensure that they are not harming the wrong guy, or for that matter harming the right guy. They have a job to do, it DOES have responsibility that goes along with it. If they are instructed to do something illegal or unlawful, they should refuse. If they are fired, they then have grounds for their OWN lawsuit.
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So the author's comment that "just because a judge signs off on it, doesn't make such things legal" is not accurate.
The fact that the search is legal pursuant to the warrant does not mean that the property owner is prevented from making legal challenges to the warrant or the scope of the search, or to later ask a judge to exclude from evidence what was found during the search.
Those issues can be litigated later, and they often are litigated later.
Most of the responders in this thread seem to have no legal knowledge, but seem to have experience having been arrested or having been subject to a search warrant.
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The first part of your sentence may be true.
The second part, however, is pure speculative bullshit and completely unwarranted. Get a life.
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I am eager to hear this discussion. My guess is that you might be disappointed to find, not that DHS failed to meet the legal standard required, but that the standard is so low that they did meet it.
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Where are the warrants?
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Re: Where are the warrants?
You might be referring to the Turkey Day Takedowns. The government did file a complaint about TVShack though...
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Re: Re: Where are the warrants?
They're also starting to seize them differently that's harder to track. Instead of pointing them all to NS1.SEIZEDSERVERS.COM (seizedservers.com is operated by ICE), some departments are setting up virtual nameservers on the seized domains. For example something like NS1.FAKELV.COM.
There's a website that shows when domains are added to a specific nameserver, dailychanges.com, and that new method foils journalists attempts to see when and what they are seizing. There's no benefit over the old method they were using besides hiding what they are doing.
Why so much secrecy?
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government is the biggest crook - any surprise cops are too?
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Mistake only when you get caught by a law prof; otherwise business as usual
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