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Comment by slg | Hacker News Reader

Is due process the wrong term? Can't due process occur after the fact? For example, you can be arrested for suspicion of drunk driving, taken off the road, put into custody, and found to be innocent, and that is still part of due process. Your actions appeared to be causing a threat to others, so the government stopped your actions immediately and let the courts decide your guilt or innocence. How is that different than taking a site that is suspected of harming other people offline immediately and then work on deciding guilt or innocence?

Note: I don't necessarily disagree with the author, but I am playing devil's advocate here.

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Well, due process used in this context normally means innocent until proven guilty. Unfortunately the approach taken in this instance is the reverse 'guilty until proven innocent' or worse 'guilty and that's it'.

Yes, property seizures, arrests, etc. can happen as part of due process however there are complicated legalities associated with those things. For example, you actually need a court order to make an arrest (an arrest warrant) or a warrant to seize property. Getting a court involved means you have to prove something as well, or have enough evidence. Furthermore, other things such as danger to safety, security, flight risk, etc. are all considered by the judge.

I guess that's where due process is being totally skipped here. There is no court order, no warrant, just a threatening letter without any formal basis.

"Well, due process used in this context normally means innocent until proven guilty."

While this is how it is used colloquially, at least in the US, the parent is right: Due process can occur after suspension of rights.

US Supreme court basically says it's a balancing act to decide whether you need pre-or-post deprivation due process, and what must be part of that process.

I think you make a good point. I've always thought in such situation law enforcement should be responsible for some damages if the verdict is innocence to disincentivize overly aggressive tactics. If you're taken off the road for drunk driving, but are found innocent and missed work, I believe the police should be responsible for lost wages. At least within reasonable limits. In this case, I think it would be good for law enforcement to be willing to put up restitution to legitimate business that are hurt by these tactics.

edit: Sadly, I fear the costs would merely get passed on to tax payers eventually anyway, and would perhaps not actually promote more prudent and judicial use of powers.

Drunk driving endangers lives, can websites really endanger lives?

Would you download a car... while drunk?

> I fear the costs would merely get passed on to tax payers

Yes, if you're proposing the government compensate people for XXX, eventually the taxpayers are going to be the ones footing the bill.

> Sadly, I fear the costs would merely get passed on to tax payers eventually anyway, and would perhaps not actually promote more prudent and judicial use of powers.

Well, it would if the signal it sent to taxpayers was that they needed to be more prudent in their oversight of government. Of course, just restoring immunity is an easier way to avoid the issue, and so would be the most probable response.

Taking a site offline on mere suspicion would be analogous to imprisoning someone on the mere suspicion. The notion of due process breaks down when it is too easy to abuse the process itself.

People are imprisoned on mere suspicion.

One is put in jail after an arrest before trial. They require a fee to be released before trial. Even if one is acquitted of charges, they do not receive refund.

> People are imprisoned on mere suspicion.

No, actually not. The police can place you in arrest, but only for a limited time. Then a judge has to decide based on various factors whether you can be kept in jail until trial, whether you can get out on bail and how large the sum is, and sure, you get the bail money back if you show up in court, even if your not acquitted. [1] The important factor is that a _judge_ gets to decide that, not a prosecutor or mere policeman.

[1] Please note that if you loaned the money from a bail bondsman, the bondsman gets to keep his fees. This however is a separate transaction.

In the US, if you post BAIL you do get it back, a BOND however is a service provided by a company where by they post BAIL for you and you pay a company 10% (normally) for their service, The BOND company then guarantees to the court you will appear or they will track you down, if they bond company does not they must pay the court 100% of your BAIL. So if you have a $5,000 bail, you can go to a bonding company and get out for $500, you will not get that $500 back, however if you had the $5,000 you could give that to the courts, and get 100% of that money back.

You get your bail back even if you're found guilty. Bail is just to ensure you appear in court, it's not a fine or anything like that.

> Is due process the wrong term? Can't due process occur after the fact?

I think due process would be limited to simply removing the DNS entry, not resolving to a site that is promoting other commercial sites. Just think if coke accused pepsi and got pepsi.com to resolve to coke.com?

"Is due process the wrong term? Can't due process occur after the fact?"

Yes, it can occur after the fact. At least in the US, it's a complex balancing act whether you get pre or post-termination notice/hearing.

For example, deprivation/termination of social security benefits only require post-termination hearing.

http://en.wikipedia.org/wiki/Mathews_v._Eldridge

Welfare, on the other hand, requires pre-termination notice + hearing

http://en.wikipedia.org/wiki/Goldberg_v._Kelly

While due process can occur after the fact, in order for a process to be 'due', it would have to (a) happen soon after the fact - but the website takedown isn't ensured to be so, any actions would simply stop after the takedown is done; and (b) include a way for compensating the innocent that are unduly punished - the given example has no practical way to redeem losses of the website if they are found to be innocent.

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