Guilty Till Proven Innocent: Law Professor Points Out Flaws in US’ Domain Seizure Campaign

Guaranteed, this will be the next wrinkle in the government attack strategy against the porn industry.

from www.zeropaid.com - Derek Bambauer [pictured], an Assistant Professor of Law at Brooklyn Law School in Brooklyn, New York, has taken the time to break down the “head-scratching” rationale behind the US’ Immigration and Customs Enforcement’s ongoing “Operation In Our Sites” campaign.

ICE, a division of the Department of Homeland Security, has seized at least 82 domain names so far of sites it accuses of offering counterfeit goods or copyright infringing material. The sites seized run the gamut from sites selling counterfeit goods and products to a BitTorrent tracker search engine – Torrent-finder.com.

Many have pointed out the flaws in the govt domain name seizing campaign, and add to that list of critics Professor Bambauer.

“Now, we’ve got civil seizure of items used in crime, so that’s weird enough,” he writes.

“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.”

Even though the govt is required to eventually prove to a judge that a domain name should be permanently seized, it nonetheless gets to hold onto it in the interim.

If this wasn’t enough Professor Bambauer notes the “larger” and “more interesting” question about censorship. The US govt, by seizing domain names before adjudication at trial, is essentially seizing content before it’s been declared illegal in a court of law, and could open the door for the govt to seize a wide variety of sites it finds objectionable until the accused have a chance to contest the charges.

It’s akin to seizing books or other forms of expression and putting them under lock and key.

The problem with this twofold, Professor Bambauer asserts:

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.

Seizing domain names is a troubling turn of events for the US and, as argued in the past with the proposed “Combating Online Infringement and Counterfeits Act,” could mean the US will find itself in the uncomfortable position of unwittingly setting a precedent that any country can seize or order the blocking of a domain name if some of the content on the domain (even if located elsewhere) violates the country’s local laws.

“The effort to protect the rights of Internet users, human rights defenders, and citizen journalists to speak and access lawful content online will be critically harmed,” says the Center for Democracy and Technology.

The COICA would give the Dept of Justice an expedited process for tracking and seizing domain names of sites “devoted to providing access to unauthorized downloads, streaming or sale of copyrighted content and counterfeit goods.”

“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,” continues Professor Bambauer. “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.”

Indeed there is. In many of the cases, domain name owners won’t be able to appear in a US courtroom to contest the accusations against them, resulting in a case of guilty by default. Is that really a good example for the US to show the rest of the world? Guilty by default?

Stay tuned.