DOJ Uses Asset Forfeiture Laws to Seize Websites


As you may have heard by now, the government seized the domain for megaupload.com last week and has indicted several people. What you probably didn’t know is that they did so by using the same asset forfeiture laws that are constantly abused in drug cases, along with a more recent law. The Boston Globe reports:

Under a 2008 law called the Pro-IP Act, federal authorities can seize the assets of a company charged with copyright violations. The Justice Department exercised that muscle on Thursday, when it shut down one of the Internet’s most popular file-sharing sites: Megaupload.com, accused of distributing illegal copies of music, movies, and books.

A company’s assets include its Internet address, or domain name. Under the Pro-IP Act, the government can seize that domain name from organizations that violate copyrights as long as the online address ends in .com, .org, or .net. Those addresses are issued by a registry based in the United States and are subject to US law.

The Justice Department used “an authority that was [originally] intended for seizing a drug dealer’s cars as a method for shutting down an entire website,’’ said Julian Sanchez, a research fellow at the Cato Institute, a libertarian think tank in Washington.

Sanchez said the same power could be used against other major websites implicated in allegations of data piracy. One potential example: the Swedish site thepiratebay.org, which offers users links for downloading illicit content, and which has a US-registered domain name.

The problem is this: No one has been convicted of anything. People have been indicted, but their assets have already been seized before they even get to see the inside of a courtroom. It’s the same legal fiction that allows the government to violate the Bill of Rights at will in drug cases. And it needs to stop.

Comments

  1. slc1 says

    The shutting down of Megaupload has had a cascading effect on other file sharing services. Thus far, Fileserve and Filesonic have suspended their file sharing capability and rumors abound that others may soon follow.

  2. jnorris says

    The US government on all levels does abuse its powers, repeatedly, even after promising not to do so.
    That aside, if the US government can close a pirating site now, why did it ever need SOFA or PITA or whatever the acronyms?

  3. jerthebarbarian says

    jnorris @4 –

    In the Megaupload case they can get at the servers and they can get at the people involved (either because they’re on US soil or because they’re in countries where we have extradition treaties that will be honored for racketeering and criminal copyright infringement violations).

    One of the big ideas behind SOPA (which had many “big ideas in it” – it seems to be the kind of “and a pony” legislation you get when lobbyists for one group write up a bill and hand it to a legislator) was to have a tool to get at hosts in countries where we don’t have extradition treaties like that by making it a violation to allow access to their hosts (basically make the networks responsible for cutting off access to infringing material in cases where the host servers and individuals were outside the bounds of the law). There were all sorts of problems with the way the law was written (why, for example, was mucking with DNS even part of the legislation), but my understanding is that that’s the basic idea.

    The Megaupload case didn’t have those traits and so it was prosecutable. For groups based out of, say, Russia, this kind of enforcement mechanism isn’t an option since Russia isn’t going to extradite them and is just going to laugh at us if we ask them to shut them down themselves.

  4. says

    SOPA and PIPA don’t just extend the reach of the US authorities, they massively shift the burden of proof in the direction of the content providers. It took the DOJ two years to build their case against Megaupload, and the MPAA and RIAA have argued (not without cause) that this is simply far too slow to be effective against the nimble piracy sites that can adapt and adjust their tactics far more quickly than that.

    The main concern about the new legislation was that it would prove impossible for any legitimate site that allows uploaded user content, including sites like YouTube and DropBox, to effectively police that content and stay on the right side of the law, and thus be forever at serious risk of having their web addresses removed from the DNS servers, and the whim of the content providers.

  5. D. C. Sessions says

    The problem is this: No one has been convicted of anything. People have been indicted, but their assets have already been seized before they even get to see the inside of a courtroom.

    And best of all, if they do it right they also get every dime that the defendent could use to challenge the forfeiture or defend himself.

  6. says

    Actually, I’m not sure my first sentence is correct either. What I meant to say is that the burden of responsibility for policing user-uploaded content would be shifted massively toward the web sites hosting that content — i.e. away from the content providers who, today, are the ones who have to identify their pirated material and then file DMCA take down requests.

    For example, YouTube, in spite of being very responsive to those take down requests and remaining well within the present law, still has millions of copyright infringing videos on its site, and the worry was that the new legislation would have made it impossible for YouTube and sites like it to exist, since they cannot, one their own, police all that content.

  7. slc1 says

    Re tacitus @ #6

    The entire purpose of the PIPA and SOPA legislation was to shut down all file sharing services as, under the draconian provisions of these laws, it would be impossible for them to operate.

  8. wscott says

    People have been indicted, but their assets have already been seized before they even get to see the inside of a courtroom.

    It’s not uncommon to seize someone’s assets pending trial, to prevent them disposing or transferring them. The big differences with asset forfeiture is 1) the burden of proof is on the accused to get them back, even if they’re not convicted, and more importantly 2) you don’t have to be charged with a crime at all. At least #2 doesn’t seem to be an issue in this case.

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