Last week, we learned that the owner of two domains seized as part of Immigration and Customs Enforcement’s (ICE’s) “Operation in Our Sites” had filed a petition in court to have its property – rojadirecta.com and rojadirecta.org – returned. Yesterday, CDT joined the Electronic Frontier Foundation and Public Knowledge on an amicus brief in the case, arguing that the petition should be granted in light of the substantive and procedural First-Amendment deficiencies of ICE’s seizure campaign.
The brief is intended to provide context for the judge reviewing the petition, as this will be the first court with the chance to assess the constitutional implications of using a federal seizure authority against domain names. Rojadirecta’s lawyers make a strong argument that seizure was improper in their case – at the very least because the site had been twice found legal under Spanish law – but it is important for the court to recognize that this seizure is part of a larger enforcement strategy centered on domain-seizure. The government has seized over 100 domains so far, under a low standard of proof and with inadequate process. To illustrate the problems with this approach, the brief cites several examples of other seized domains for which the connection to criminal infringement is questionable at best, and one example where seizure led to the unwarranted takedown of over 84,000 subdomains.
Pre-trial civil seizure is not an appropriate sanction for domain names, which are essential instruments of online speech. Seizing a domain name amounts to a “prior restraint” on speech – blocking a whole site in advance of any full hearing on the legality of its contents. Warrants for seizure have been issued without any warning to the domain owners, and with only a showing of “probable cause” of criminal infringement. This is inadequate – and unconstitutional – given the very real possibility of mistakes and collateral damage.
The fact that Rojadirecta had been held lawful in Spain raises addition policy concerns. Regardless of whether a US court would have reached the same conclusion, any action against such a site requires caution. Seizing the domain of a site that is based in another country and legal there sends the signal that it would be acceptable for any country to take the same action against sites that are based here and protected under US law. Given that the US generally offers a high-water mark of speech protection and is often a haven for controversial political speech, including speech that would be illegal in other countries, this is quite a dangerous precedent to set.
We’ll be keeping an eye on this bellwether of a case. We hope the court takes these concerns seriously – and helps get ICE to do the same.