Judging Efficacy, Legality of Site SeizureTheories for Seizing Domain Names Legally Untested
The U.S. Justice Department's seizure of website domain names that distributed illegal copies of copyrighted Android cell phone applications this past week could deter others from partaking in this illicit activity [see Feds Seize 3 Website Domains Tied to Android Apps].
"This is cutting-edge enforcement," says intellectual property lawyer James Denaro of CipherLaw.
Seizing domain names is similar to seizing a printing press. There are significant First Amendment limits on seizing a printing press. Those limits should apply equally to domain names.
The director of the High Tech Law Institute at Santa Clara University Law School, Eric Goldman, agrees ... with a big but:
"It's a losing game for the government to go after pirate sites one-by-one, so the government surely hopes this enforcement action will have a deterrent effect. If it doesn't, then this particular action will be inconsequential."
And Goldman offers another but: Are the seizures legal? That's a question that remains unanswered.
In an exchange of e-mails I had with Goldman, the law school professor points out the seizure of the domain names is relatively novel for the Justice Department, but not for the Department of Homeland Security's Immigration and Customs Enforcement division, which has seized hundreds of domain names on similar theories.
"ICE's campaign of domain name seizures has been widely criticized," Goldman says. "It remains to be seen if the DoJ will do a better job than ICE, or if the DoJ will make the same errors ICE has made."
The legal wheels of justice continue to turn slowly as the courts mull whether seizing domain names in the manner taken by ICE and DoJ is legal. "Overall, the legal theories for seizing domain names are questionable and legally untested," he says. "We are still working through cases challenging ICE's seizures. It's possible that the government lacks the legal authority to seize domain names like this."
Goldman explains the seizures are problematic because they strip an owner of an asset before the government has proven its case. "Indeed, ICE has made some seizures where it cannot prove its case in a court,"he says. "This becomes a gross abuse of police powers.
"Domain names are a key instrument in publishing online speech. Seizing domain names is similar to seizing a printing press. There are significant First Amendment limits on seizing a printing press. Those limits should apply equally to domain names. The government's domain name seizures, especially when done without any judicial authority or oversight, could be a major assault on our freedom of speech."
Illegal activity must be stopped, but the government, in enforcing copyright laws, must not tread on our constitutional freedom of free expression.