General noises of denouncement

You may have heard that ICE (that’s Immigration and Customs Enforcement) has seized several domains that it believes are related to piracy. I’m not sure why ICE is doing the seizure, as compared to, say, the DOJ or DHS. I have conspiracy theories I can spin about border exceptions, but they’re kinda paranoid, and I want to reserve my paranoia for twitter, where I’m stuck with 140 characters.

(Okay, fine. I’ll be paranoid on my blog: one possibility why ICE is involved is that the people who ran these domain names are outside the US. The theory would be that we can then seize their stuff without due process–yay border/noncitizen exceptions! This is so paranoid on my part that I’m almost ashamed to write it. I don’t want to believe my government just claimed that it had a right to censor any internet site outside the United States, and that noncitizens don’t have a right to bitch about it. I so want my paranoia on this to be just paranoia, because otherwise we are so far into 1984 territory that I want to vomit.)

In any event, needless to say, I hate this. I don’t understand how this is not the very definition of a prior restraint–that is, blocking someone from speaking and then subsequently requiring them to prove that their speech is okay. Free speech 101: This is prima facie intolerable. This wasn’t even thinkable in 1792. How are we thinking it today?

This isn’t how we swing here in the United States. We believe in being innocent before being proven guilty. If these guys are copyright infringers, by all means prosecute them in federal court and seize the domain names upon conviction. But I just cannot possibly fathom a world in which someone thinks it is okay for the federal government to shut down a website and literally block free speech without first obtaining a conviction or providing an opportunity for defense.

Gosh. It just seems so much less totalitarian to fight piracy with books that are easy to access and download worldwide, and which are reasonably priced. Or, failing that, to fight piracy like every other crime: with the rule of law.

8 thoughts on “General noises of denouncement

  1. This like… when I saw your tweet initially my head did a little “does not compute” because… ICE and domain names -what???
    And now reading your post, cognitive dissonance has settled in and while my ensuing headache may be a source of my nausea, I’m afraid its cause is along the lines of what you said.
    I’m scared to look into it : [Just had a depressing conversation with a public defender about our shrinking constitutional rights… can’t take any more. At least not tonight.]

  2. Yes, I’m all for prosecuting pirates, but it’s more important to do it in a way that does not set a precedent for curtailing the liberty of the innocent.

    Also, yes, as a non-USA citizen, I’d be pissed as hell if the USA took down my site and then told me I had to prove it wasn’t illegal in the first place. Let them talk to my government and let my government take care of it, if my own government decide I’m doing something wrong.

  3. Let’s consider this a different way. If you’re caught with a lot of stolen stereos in your car, you’ll probably be arrested. That stops you from distributing those stolen stereos. Then comes due process, wherein you have a chance to defend yourself against various charges and eventually you’re either convicted and sent to jail or not convicted and don’t go to jail. In the meantime, the distribution of the stolen stereos stops, and a lot of stereo owners get to avoid being victims while due process occurs.

    Whose rights are more important? All the victims or the culprit who was stopped due to probable cause?

  4. Courtney, I just saw this on CNN:

    I think it’s telling that the official they interviewed made it plain that, in his opinion, since neither of the legitimate rap sites they had shut down had filed an appeal yet, it was as good as an admission of guilt. Having read your original article a few days ago, I confess that I thought, “Surely not–right?” (I can be a little Pollyanna, it’s true.) But now, I do not think you are being overly paranoid at all.

  5. Laura, your analogy doesn’t work for many reasons.

    First, this is civil seizure, not a criminal investigation. If you are arrested with a lot of stolen stereos in your car, you are right that you get due process. For instance, you have the right to a lawyer. Also for instance, you have the right to a speedy trial. Also for instance, you have the right to proof beyond a reasonable doubt. The website owners in this case get none of those things, because they are not being prosecuted (at least not yet, so far as I know). They have just had their websites seized, and it is up to them to file a protest.

    So imagine that you are innocent of any crime, and you have your car full of stuff because you are moving, and a government official comes along and takes your stuff and the car you were driving it, because they believe it is stolen, and you have to hire an attorney to prove your innocence.

    (In fact, this happens with civil drug seizure, and I am Not Comfortable With It because it is Bunk, and the only reason people aren’t more pissed off about it is because it rarely happens to middle-class people who look like they belong in, and I use quotes advisedly “mainstream America.”)

    But more importantly, the stuff seized here is not stolen radios. It’s not even radios at all. Imagine that you have stolen a bunch of radios, and that you also have a radio show. Imagine that instead of taking your radios, they shut down your radio show.

    You still have your radios. You can go sell them anywhere. The only thing you can’t do is talk, and they won’t let you talk.

    That’s a separate species of wrong, because not only have you been subject to civil seizure, they’ve taken away your free speech rights.

    The victims of copyright infringement already have statutory rights: They can file civil lawsuits; they can file DMCA requests with the people who host services for those who infringe upon copyright.

    But, yes, when it comes down to it the Constitution does not afford victims of a crime any rights. Go. Look at it. Due process is given to criminals. That’s what the rule of law means: that you give due process to people even if you think they are guilty and that they are bad people. That even people who say stupid, wrong things get to speak freely. That the government shouldn’t be deciding who gets to speak, and people shouldn’t have to apply for permission after the government has squelched them.

    The rule of law leads to a lot of discomfort, but it’s a hell of a lot better than any alternative.

    But just imagine what would happen if we really thought it was okay for the government to take down any website on the grounds that it thought the person who made it was a criminal.

    Wikileaks? Gone.

  6. Courtney – I disagree – vehemently. The analogy is quite accurate. The court orders that led to the domain seizures had nothing to do with speech and everything to do with trafficking in stolen property. This is not about censorship. The government did not shut down the internet or even any significant portion. It stopped no one from speaking about the issue. Plus, due process does exist for these types of forfeitures, just as it exists for any type of DMCA complaint.

    Seriously, you’re an author. You have a stake in the battle for protection of intellectual property. So this tool for enforcement against piracy makes you uncomfortable — fine. Do you have a better idea? How should law enforcement go about stopping piracy? Or should the government do nothing? Is it appropriate that piracy be fought only by the victims, or is there sufficient public benefit to justify the involvement of government law enforcement and the ensuing risks?

  7. Yes, I’m an author. I have a stake in the battle for protection of intellectual property. And I just want to point out that they are not, in fact, taking away the stolen property.

    All the seizure has done is redirected traffic from to a website that ICE maintains. The material in question is STILL out there. It’s still accessible if you know the IP address. The people STILL have access, and can post the material anywhere else on the internet. What this does is it disrupts the platform of the people who are talking. It’s exactly like shutting down a radio station. You can go find another one, but you lose an audience.

    If I, as an author, think it is not worth my while to file a lawsuit, why should we use the awesome power of the government to cut off speech when I have already determined that I’m not willing to avail myself of the remedies that are available to me? I have remedies. Every author has remedies. You can sue the person who puts your file online, and you can get some serious statutory damages. Authors already have this remedy.

    They just don’t use it.

    I would also be happy to have the government criminally prosecute people who are actual wrongdoers. But this is not what has happened here.

    This is not a criminal prosecution. It’s a civil forfeiture.

    Finally, I just want to point out that you’re presuming that the sites in question are guilty of trafficking stolen goods. No doubt some of them are. But it’s also clear that others of them are not guilty of anything under current law. How would you feel if they shut down YOUR website, and said it was because you had done something illegal?

    Do you really not see how shutting down a domain name is a free speech issue? How letting the government shut down a domain name, and requiring people go to them and prove that they are innocent of a crime, can lead to serious abuse?

    What it comes down to is this: I’m not willing to shut down piracy at the expense of the rule of law. It would be seriously selfish for me to say that I’m willing to accept that some innocent people will have to suffer just so that I don’t have to get off my duff and file a civil lawsuit against pirates.

  8. If you don’t like civil forfeiture, lobby for change. Until then, accept that it is a legal tool under the rule of law, and by all available accounts I’ve found thus far, the rule of law was followed in the case in question.

    Also accept that some of us have been fighting this battle for many years. By the most conservative of estimates, many of us have lost sums sufficient to have sent all of our children to a modestly priced university, four years, without having to take out loans. We know how ineffectual the act of getting off one’s duff and filing a civil lawsuit has been in terms of actually making a dent in the flow of stolen intellectual piracy. The pirates know all the loopholes and joyfully exploit them, and those operating internationally are particularly good at thumbing their noses at what few (and costly) tools are available to individual rights holders. We’re also extremely frustrated over the lack of status afforded to intellectual property rights as compared to physical property rights and the outright sense of entitlement so many people have toward the creative work produced by me, you, other writers, artists, photographers, musicians, programmers, and others whose livelihood is derived through the creation of intellectual property.

    You said: “What this does is it disrupts the platform of the people who are talking. It’s exactly like shutting down a radio station. You can go find another one, but you lose an audience.”

    Are these sites where people are talking? Is this the primary purpose of these sites? Any of them? A key point to this issue is the balance of rights. Free speech speech is one right. Property rights are another. One doesn’t outweigh the other, and no person’s individual rights trump the rights of another person’s. In a free society, it’s a balancing act. Yes, some specific free speech to a specific audience may be disrupted in the course of enforcing property rights, but that does not mean we should never enforce property rights if there’s a remote chance that someone’s right to free speech at the time, location, and web domain of choice might be disrupted. Otherwise, following the same principle, phone service could never be cut off for non-payment.

    Talk radio and social networking aren’t the targets — if they were, then this would clearly be a free speech issue. The domain seisures at issue here are of a different sort. The underlying principle in this case is this: if a website allows trafficking in stolen goods, whether real property or intellectual property, then it is permitting illegal activity. If that website also has other legal activity, then the issue can become one of stopping the illegal activity without infringing upon the legal one. Sometimes that’s possible. Sometimes not — it depends on the site owner’s willingness to police the site and on the site owner’s motivation for allowing or disallowing the illegal activity. If the site owner’s making money off it somehow, and the server is physically located outside the jurisdiction of its victims, then the site owner has little motivation to change anything. I can pull from my file drawer examples of dozens of sites that hide behind free speech rights while directly assisting piracy. Most exist for the express purpose of fostering piracy. Email me privately, and anytime you’re in the locale, you’re welcome to drop by and dig through the deep stacks of paperwork, and you can check the timesheets, too, and see how much creative time is lost just in dealing with the most aggregious offenders.

    Can you name any specific free speech victims in this forfeiture case who lost their audience? I’m specifically interested in those whose free speech on the site consists of more than promotion of what’s being illegally distributed via the site.

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