Comment by tptacek | Hacker News Reader

Comment by tptacek | Hacker News Reader

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People are having a hard time understanding how this could be happening. Perhaps these people don't get out much. What's happening here is simple: the federal government is using Civil Asset Forfeiture for IP/copyright enforcement.

Particularly when armed with a court order, the government has broad authority to seize property that can either be traced to the proceeds of a crime, or that can be shown to be used in furtherance of a crime. This comes up all - the - time in drug enforcement, where the police use it to seize vehicles used to run drugs. All that appears to be happening here is that the government is applying it to copyright enforcement.

The Libertarian magazine Reason has been covering the increased use (and misuse) of civil asset forfeiture for years now. It ticked up during the Bush years, and has been validated multiple times during the Obama presidency.

In particular, note that there are due process protections with strict statutory timelines attached to them for challenging civil seizures. One doubts many of these enterprises will avail themselves of those procedures; most would probably lose, and it's simpler just to host offshore.

"Why, oh why, is DHS and ICE doing the RIAA's work for them?" Because it's part of their charter. The "C" in ICE stands for Customs. Customs deals with counterfeiting (it's an importation issue), and hosts a large IPR enforcement division. No, the RIAA has not wheedled its way into DHS and refocused homeland security on copyright enforcement.

Civil asset forfeiture can get very sketchy. I wish there were more bright-line limitations on what the government can and can't do with it. The impression that I have is that in the majority of cases where it's applied, you generally want LEO's to have the power to seize what they're seizing. But every once in awhile, they pull some 60 year old guy over with the cash down payment he was going to make for his new pickup truck, declare him a drug dealer, and end up pocketing the cash because he can't find a lawyer. That's a miscarriage of justice. In light of it, I have a hard time feeling too sorry for people who lose their pirate music storefront sites.

I like 'daeken (I work with him!), and I know and respect that he has a very different take on intellectual property than I do, but his take on this seems a bit breathless.

> I like 'daeken (I work with him!), and I know and respect that he has a very different take on intellectual property than I do, but his take on this seems a bit breathless.

Quite honestly, this was a post written in about 20 minutes simply due to being upset and wondering "when is my own domain going down?". I didn't figure it'd be hitting the top of HN and get this much attention, otherwise I probably would've made it considerably more coherent, and less emotional.

A. Do you have any references/evidence saying that this is the legal doctrine being used?

B. Civil Forfeiture is indeed evil and dubious. IF it were expanded and applied to everything to which one could imagine, we would indeed be living in dictatorship. It's kind of a bleeding whole in rule-of-law, one that hasn't been expanded too much recently - I could only wildly speculate that they hadn't wanted negative attention for it. In any case, this is a good reason to be against it.

If you read the story, look at the landing page ICE set up on the seized domains, and then Google the two US Code references on that page, you'll see they were both civil forfeiture statutes.

You write as if your understanding of asset forfeiture was "the government can simply take whatever it wants whenever it wants". That isn't the case at all. It's called "civil" forfeiture because the government is suing for the property. There's a court case and everything. It is, essentially, the exact opposite of what the article we're commenting on claims it is.

You write as if your understanding of asset forfeiture was "the government can simply take whatever it wants whenever it wants". That isn't the case at all. It's called "civil" forfeiture because the government is suing for the property.

Taking "whatever they can get away with" is quite different from "whatever they want".

Whether authorized by a judge or not, a procedure involving "take first then you've got to sue us", is a violation of the basic rule of law - the requirement to face your accuser before any property can be taken. This goes back to the constitution and even the Magna Carta.

I mean, There was no service or trial in the situation described. Judge-authorization for lawless act is just a dodge Otherwise, we'll go the system of "Judge Dred" ("Judge, Jury and executioner") http://en.wikipedia.org/wiki/Judge_Dredd

See my other comment in this thread. It's "all right" because it's the property being sued, i.e. the domain name itself, not the holder of the domain name (yes, you read that correctly). That's how they get away without due process for the holder, it's irrelevant since they're officially a 3rd party.

I'm sure the domain name was properly impressed by the judge's warrant when it surrendered to the US Marshals or whomever.

It's simply not correct to assert that the property owner has no due process rights. You obviously don't approve of the specific process accorded to property owners, but words mean things.

I mean due process in the seizure. They're allowed to contest the seizure afterward.

In much the same sense as they're allowed to contest an arrest... after they're arrested.

This seems kind of silly to me. On approximately the same evidentiary standard, any law enforcement order could achieve a warrant for arrest and directly deprive the operators of these sites of their liberties. Here, all they lost was their domain name.

I'm not interested in an argument about civil forfeiture, not least because we probably already agree more than we disagree (but nobody will know that because now the Magna Carta has been invoked and there's not enough oxygen left in the capsule for both of us). I'm just saying, this isn't some crazy new censorship regime dreamed up by the RIAA and the DHS. This is absolutely part of Customs' charter.

On approximately the same evidentiary standard, any law enforcement order could achieve a warrant for arrest and directly deprive the operators of these sites of their liberties. Here, all they lost was their domain name.

Again, I think your "how badly do they get hurt" standard is wrong-headed.

Democracy isn't really about limiting how much authorities do to people. It's limiting how easily and privately authorities can do things. Yes, it is about making thing hard for the authorities because when it somewhat hard to act against people, authorities are more reluctant to act.

IE, the difference between seizure and arrest is if you arrest these people, you've committed yourself to going through the process of proving them guilty.

If a cop writes a ticket, they have to show up in court to defend the valid of the ticket. If the cop just takes money, they aren't committed to their action.

If the various website were engaging in counterfeiting or whatever, the actual job of these agencies is to find the people and arrest them. Shutting off a site will only slow things down slightly - but it does give a far-too-convenient tool to authorities

It is important for democracy that guilty people be proven guilty. A lesser standard will likely still get lots of guilty people but will open the door to despotism as well. I know it stands in the way of blood-lust for the guilty but thems the break - unless you've found a way to achieve a guaranteed-enlighten-despotism (it always sounded good in the past but never worked out).

No, the government is suing the property: http://en.wikipedia.org/wiki/Civil_forfeiture#United_States

Yes, you read that correctly. As in USA v. $124,700: http://en.wikipedia.org/wiki/USA_v._$124,700

Follow the "jurisdiction in rem" link for more about how this ... unique doctrine developed: http://en.wikipedia.org/wiki/Jurisdiction_in_rem

And the first example of the doctrine provided on the Wikipedia page dates to (drum roll) 1828.

Perhaps I've been the victim of hyperbole, but I've read and heard of numerous instances where asset seizure has been and is used to fund a significant portion of the seizing authority's budget.

If that doesn't have the potential for "conflict of interest" written all over it, I don't know what does.

You realize of course that you're only going to hear about the asset forfeiture cases where the process is abused. The rest of the cases --- which vastly outnumber the abuses --- are boring.

Moreover, virtually every abuse case I've read about has occurred on a local (sometimes even municipal) level. Have you read a lot about federal law enforcement abusing asset forfeiture procedures?

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