While the story is a bit stale, I wasn’t able to blog about it when it was first published, and the possibility of this happening again is still very timely.
Techdirt reported last November on the seizure of a popular music blog’s domain and its eventual return to its rightful owners. What’s alarming here is the length of time that the government was able to unilaterally deny a legitimate blog of its traffic, and the profits from that traffic.
The introduction paragraph to the story is so well written that I’m going to quote it in its entirety here. The parallels to the digital world should be relatively obvious:
Imagine if the US government, with no notice or warning, raided a small but popular magazine’s offices over a Thanksgiving weekend, seized the company’s printing presses, and told the world that the magazine was a criminal enterprise with a giant banner on their building. Then imagine that it never arrested anyone, never let a trial happen, and filed everything about the case under seal, not even letting the magazine’s lawyers talk to the judge presiding over the case. And it continued to deny any due process at all for over a year, before finally just handing everything back to the magazine and pretending nothing happened. I expect most people would be outraged. I expect that nearly all of you would say that’s a classic case of prior restraint, a massive First Amendment violation, and exactly the kind of thing that does not, or should not, happen in the United States.
The story involves Dajaz1.com, a hip hop blog well known enough to make Vibe’s list of top blogs in the category. So this is not just some small hip hop fan blog off in the corner of the Internet that nobody cares about, this is a relatively well known and popular blog.
Again, quoting the story:
Despite all of [the evidence that the site was not infringing copyright], the government simply seized the domain, put up a big scary warning graphic on the site, suggesting its operators were criminals, and then refused to comment at all about the case. Defenders of the seizures insisted that this was all perfectly legal and nothing to be worried about. They promised us that the government had every right to do this and plenty of additional evidence to back up its claims. They promised us that the government would allow for plenty of due process within a reasonable amount of time. They also insisted that, after hearing nothing happening in the case for many months, it meant that no attempt to object to the seizure had occurred. Turns out… none of that was true.
I’ll summarize the rest of this, because I don’t want to quote the entire story here. First the facts about the rather messed-up seizure and forfeiture laws we have in the US. The Federal government has 60 days to notify the owners of the reason for the seizure. As an example, today is 2012 April 22, so if one of my domains (or one of your domains, or someone else’s domain) was seized today, they would have until 2012 June 21 to actually notify me (or you or whoever) of the seizure.
Now, for a site maintained as a hobby, this would be at worst a significant annoyance. For a site that’s intended to generate profit? Basically, this is a license to kill a business based on mere suspicion, without due process, without a proper trial.
The property owner, once notified, has 35 days to file a claim requesting the return of the property. It’s of course not to the government’s advantage for everyone to contest the seizure, of course, so usually they threaten to file charges or make similar intimidation attempts against those they have stolen, er, seized property from. The seizures are supposed to be temporary, to preserve evidence and/or stop criminal activity. Once a claim is filed, the government then has 90 days to start the full forfeiture proceedings. So, that’s about 150 days total that the government can drag their feet, or to carry the previous example further using today’s date, until 2012 September 19. (The time the property owner delays in filing the claim is the property owner, not the government, dragging his/her/its feet, though the total time could add up anywhere between 150 to 185 days, which using the same example could be as late as early November.)
The lawyer representing Dajaz1, Andrew P. Bridges, aggressively contested the seizure and forfeiture on the site’s behalf. The deadline for forfeiture on Dajaz1.com came and went, and, quoting the story:
Bridges contacted the government to ask what was going on, and was told that the government had received an extension from the court. […]
He also asked for a copy of the the court’s order allowing the extension. The government told him no and that the extension was filed under seal […]
He asked for the motion papers asking for the extension. The government told him no and that the papers were filed under seal […]
He again asked whether he would be notified about further filings for extensions. The government told him no.
He then asked the US attorney to inform the court that, if the government made another request for an extension, the domain owner opposed the extension and would like the opportunity to be heard. The government would not agree.
So, in summary, Dajaz1 was told, through their attorney, “sorry, you can’t have any documentation, it’s all under seal, and we’re not going to tell you if we decide to drag our feet even longer, and we’re not even going to let you be heard in court.” This case was kept under a veil of secrecy that would make some people think someone who owned Dajaz1.com had ties to a major terrorist cell (which of course was not and is not the case).
Further extensions were made, and once the last one expired, finally, Counselor Bridges asked again for the return of Dajaz1.com to its rightful owners, which happened the date of the story, 2011 December 8. That’s just over a year’s worth of profits the site’s owners are out, an amount that can’t even be calculated with any degree of certainty.
Simply put, this is outrageous, and cannot be allowed to continue happening in a sane society. We, the taxpayers, are out that money should Dajaz1 choose to sue for it due to the gross incompetence with which the government agencies involved chose to handle this case. I certainly don’t want my tax dollars being spent to fix these mistakes which could easily have been avoided or at the very least mitigated months earlier.
If we are going to keep the seizure and forfeiture laws (and to be honest, that’s a big, huge if), this is a list of things I can see doing to make them much more fair to the property owners (who should always be assumed innocent until proven guilty and granted due process):
- Seizure and forfeiture proceedings cannot normally be filed under seal without just cause. Any sealed filing will need to be reviewed by an independent judge or arbitrator assigned solely to the task who can decide if the cause is justified. If not justified, the filing is immediately unsealed, it cannot be withdrawn prior to unsealing.
- There needs to be a real risk of sanctions against the government agencies who completely screw up and rob legitimate website owners of revenue, whether negligently or willfully. To some, the income from a website is how they stay fed and housed. My understanding is that those who work for the government, who robbed Dajaz1.com’s owners of a year’s worth of advertising revenue as well as causing huge damage to their reputation, have not been sanctioned at all. (I would love to be wrong about this, so please let me know if this is indeed not the case.)
- The length
of time the government has to notify seized property owners, 60 days, is way too long and practically encourages the government to drag its feet. This should be no longer than 7 days unless the government cannot locate the owner during that time, then a maximum of 30 days with an exception if there is emergency.
- The length of time the government can wait to start forfeiture, 90 days, is also way too long and again practically encourages the government to drag its feet. This should be shortened to 30 to 60 days, with no extensions unless there is an emergency (such as a natural disaster).
- The tactic of intimidating or threatening owners who contest a seizure should be banned by a specific law against the practice. (“When governments fear the people, there is liberty. When the people fear the government, there is tyranny.” — Thomas Jefferson)
- If no criminal case is filed, return of the property
should be automatic. An attorney should not have to ask for the property’s return. This is condescending and an insult to those who have already been wrongfully deprived of their property. (The Jefferson quote applies somewhat here too.)
- Courts should be allowed to severely sanction a government agency involved in a seizure or forfeiture proceeding who causes a delay the proceedings without just cause. Ideally, the law would say in as many words that in such a proceeding “time is of the essence.”
As a rule, I don’t support seizure and forfeiture laws, but any law should be fair to everyone. Maybe it would make seizure and forfeiture proceedings so much trouble to use that they wouldn’t be used as often anymore. I don’t necessarily think that would be a bad thing.