For the last several months, two Democratic members of Congress have been asking the Department of Homeland Security/ICE to clarify the policy behind its seizures of the domain names of websites that are alleged to be involved in copyright violations. According to TorrentFreak.com, they've finally gotten a response, but it's not one that resolves any of their questions.
“It is hard to imagine that the administration can effectively deter online copyright infringement when they refuse to answer basic questions regarding what they believe constitutes infringement,” Senator Ron Wyden (D-OR) complained.
Wyden pointed in particular to the seizure of the Torrent-Finder website, a specialized search engine which merely provides links to sites that may contain infringing material. “Particularly troubling is their refusal to explain how linking is different from free speech," he explained. "Given that hyperlinks in many ways form the foundation of the Internet, efforts to go after one site for linking to another site – which the Administration is currently doing and the Protect IP Act would expand on – threaten to do much more than protect IP.”
The Protect IP Act is a copyright protection bill currently before Congress that would give the government even more sweeping powers over allegedly infringing websites and search engines.
The letter sent by DHS to Rep. Zoe Loefgren (D-CA) does not answer any of her questions about the legal basis for its actions or what measures it took to determine the validity of complaints against the seized websites. Instead, it repeatedly makes statements such as "Although ICE cannot discuss the ongoing investigations of any seized domain name ... I would refer you to the voluminous affidavits filed with courts in these matters."
Loftgren was even more outspoken than Wydan in her disgust with the DHS letter. She characterized DHS's actions as "censorship" and added, "In this instance, our government has seized domains with nothing more than the rubber stamp of a magistrate, without any prior notice or adversarial process, leaving the authors of these sites with the burden of proving their innocence. While this might be enough for the seizure of stolen cars or knock-off handbags, it is not enough for web sites and speech on the Internet."
The domain seizures have been carried out under a procedure that allows the government to seize physical property that has been used in the commission of a crime. Wyden and Loftgren, however, are concerned that the application of this legal strategy against domain names, solely on the basis of a government affidavit alleging probable cause, violates due process and possibly also the First Amendment guarantee of freedom of speech.
As explained by TorrentFreak, "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."
The Supreme Court has ruled that seizures without prior notice must be limited to "extraordinary situations where some valid government interest is at stake" -- a narrowly-drawn exception that would not appear to apply to cases of copyright violation.