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This week, the US government responded to a Spanish Internet company's petition to have its seized domain name returned. Earlier this year, customs officials seized the domains rojadirecta.com and rojadirecta.org under suspicion of copyright infringement. The domains' owner, Puerto 80, has argued that, by seizing the domain names and preventing their use, the government has not just taken down a legitimate site, but also is suppressing speech—not just the speech of the site's operators, but of the users on the discussion boards hosted at the site. (Public Knowledge joined a brief with the EFF and CDT supporting the release.) The government requests the court not to release the domain names, claiming that Rojadirecta will only use the domain to commit crimes.
The dispute at this stage really centers around the interpretation of the seizure laws, in particular 18 U.S.C. § 983. This section covers not just seizures of copyright infringing material, but all sorts of contraband, including drugs, weapons, ill-gotten cash, and so on. One particular subsection of the law says that anyone whose property has been seized can petition to have the property released immediately:
(f) Release of seized property.
(1) A claimant under subsection (a) is entitled to immediate release of seized property if--
(A) the claimant has a possessory interest in the property;
(B) the claimant has sufficient ties to the community to provide assurance that the property will be available at the time of the trial;
(C) the continued possession by the Government pending the final disposition of forfeiture proceedings will cause substantial hardship to the claimant, such as preventing the functioning of a business, preventing an individual from working, or leaving an individual homeless;
(D) the claimant's likely hardship from the continued possession by the Government of the seized property outweighs the risk that the property will be destroyed, damaged, lost, concealed, or transferred if it is returned to the claimant during the pendency of the proceeding; and
(E) none of the conditions set forth in paragraph (8) applies.
It's pretty clear that Puerto 80 meets these criteria. It owns the domains at issue, and continued possession by the government can reduce its traffic and harm its business (the fact that domain seizures don't stop site usage doesn't mean that site owners aren't harmed). Criteria (B) and (D) don't even really apply, since it's just not possible for a domain name to be "destroyed, damaged, lost, concealed, or transferred." It's a string of characters associated with an IP address. It'll be right there should the government need to seize it again.
That leaves subparagraph (E), which refers us to paragraph (8). That bit says:
(8) This subsection shall not apply if the seized property--
(A) is contraband, currency, or other monetary instrument, or electronic funds unless such currency or other monetary instrument or electronic funds constitutes the assets of a legitimate business which has been seized;
(B) is to be used as evidence of a violation of the law;
(C) by reason of design or other characteristic, is particularly suited for use in illegal activities; or
(D) is likely to be used to commit additional criminal acts if returned to the claimant.
So the government is arguing that the domain name "is likely to be used to commit additional criminal acts," and shouldn't be returned until a full trial on the merits.
When we're talking about seizures of guns or smuggling boats, having this provision makes a great deal of sense. You don't want the court to be putting tools of crime back in the hands of suspected criminals. But in the context of a means for expressive speech, we face a very different landscape.
Constitutional law takes a very dim view of government actions that place a prior restraint on speech. This extends to these laws regarding seizure as well. The Supreme Court has ruled unconstitutional the seizure of books alleged to violate obscenity laws. If a book, of known and unchanging contents, can't be seized and held on obscenity grounds before a court actually decides that it in fact violates those laws, how much more problematic is the seizure of a domain name that resolves to a dynamic and ever-changing site that posts the speech of hundreds or thousands of different users?
The order in which things happen is important here. In the rare cases where speech itself is found to be illegal, its speakers can be punished after the fact. But preventing that speech in the first place, before anyone knows whether or not it does in fact break the law, runs the risk of having the government suppress lawful speech and expression—a risk that Constitutional law is not prepared to take.
In this case, the government is all too willing to put that speech at risk. It argues that, based on an abbreviated review of the (likely disputed) facts so far, the court should continue to prevent Puerto 80 from using the domains. Of course, this is long before anyone has proven that Puerto 80 was in fact criminally infringing copyright, let alone that the domains will be used to continue criminal infringement. The briefs from the parties on either side show that there's quite a lot to be litigated before that question can begin to be answered—does Puerto 80 face liability for links posted by its users? Do those posted links meet the several criteria necessary to rise to the level of criminal infringement? The government is basically arguing that the domains stay in its hands unless Puerto 80 can actually prove its innocence in the meantime.
This is backwards. The burden is on the government to prove that their restriction of speech is for a lawful purpose. And until they can make that showing, they shouldn't have the ability to hold on to a domain, or a site, or other means of speech—certainly not when the accused parties are willing to submit to a court's final determinations of lawfulness. Keep in mind, this isn't about whether or not Puerto 80 is guilty or not--that's a question that will require the analysis of a number of complicated factors. This is about what the government should ahve to show, in the absence of guilt, before it pulls domains offline.