Last week, Bryan McCarthy, the 32-year-old operator of ChannelSurfing.net, was arrested on charges of criminal copyright infringement. This arrest has once again raised questions about the seizure of domains operated by those that are accused, but not convicted, of copyright infringement related crimes. Critics ranging from bloggers to individual rights advocates to Senators have rightfully questioned the constitutionality of these seizures.

The most serious constitutional issues with the domain seizures arise because the Government does not provide any notice to the domain owners prior to seizing them. One moment, their normal site is up at their web address, the next moment, all that is up at their web address is a DHS/ICE seal.

Without knowing what they have been accused of or having the opportunity to defend their site, the Government has repurposed the owners’ private property.

In order to seize the domain names without notice to the owners, the Government uses a procedure that permits it to bring an action directly against a piece of property used in the commission of a crime –in this case the domain name– rather than the owner. This type of action (called an “In Rem” forfeiture) is not new. In the past, the Government has used In Rem actions for purposes such as an action against an automobile used to transport bootleg whiskey.

An In Rem action does not necessarily require the Government to wait until a court hears both sides and rules that the property has been used for illegal purposes and is subject to forfeiture. Instead, in many cases, the law is written so that all the Government has to do is to sign an affidavit that demonstrates probable cause for the forfeiture, which is signed by a magistrate judge and the Government can seize the property.

To carry out the In Our Sites program, ICE has treated these domains like any other instrument used for common theft and judges have signed off on their affidavits. The U.S. Attorney has publicly exclaimed that website operators like Brian McCarthy are hiding “behind the anonymity of the Internet to make a quick buck through what is little more than high-tech thievery.”

The Government’s view on the domain seizures seems to be overly simplistic and it ignores the fact that a domain is not the same as a gun or a boat used to transport narcotics. A domain is a unique combination of different types of property, including an address, a valuable asset, a brand and a medium for speech.

Any Government seizure of private property raises Constitutional questions. Here, I will outline the five most pressing Constitutional questions that have arisen because of the manner in which the Government has chosen to seize this unique type of property.

1. The Government Seizes The Domains Without Prior Notice And Hearing.

The Due Process clause of the Fifth Amendment guarantees that “[n]o person shall … be deprived of life, liberty, or property, without due process of law.” Traditionally, this means that individuals must receive notice and a meaningful hearing before the Government takes away their property.

This right to prior notice and hearing is not a minor legal technicality. It is an indispensible aspect of due process. It is the only way an individual can protect himself from the Government arbitrarily or mistakenly depriving him of property before it happens.

Unfortunately, it is not that simple. If due process invariably required prior notice and hearing, that would be the end of the analysis. The domain name owners received no notice or opportunity to give their side of the story before their domain names were seized. The complication comes from the fact that, over the years, the courts have carved out certain limited exceptions to the pre-deprivation notice and hearing requirement. Although the Government has proceeded as if the domain seizures fit into one of those exceptions, it is highly questionable. The Supreme Court has explicitly limited those exceptions to “extraordinary situations where some valid governmental interest is at stake that justifies postponing the hearing until after the event.”

Is the In Our Sites program one of those “extraordinary situations where some valid governmental interest is at stake?” Determining whether the program should be allowed to compromise a citizen’s due process rights basically involves balancing the importance of the individual’s property interest against the Government’s interest in taking property prior to notice and a hearing.

In the past, the courts have permitted the Government to delay notice and hearing to protect important public interests such as the ability to collect taxes or protect the public from contaminated food. However, the court refused to allow the Government to delay notice and a hearing before seizing a home, in part because a home is too important a private property interest.

Domain owners cannot argue that their property interest in a domain is as important as a person’s property interest in his own home. However, whether the owners are using it for innocent or criminal purposes, a domain is critically important to its owner. The domain is how other people, computers or search engines can find a site. When a domain is seized, the content gets locked away until a new domain is created. A domain is also a critical marketing and branding tool and, in some cases, like the sex.com domain name that sold for $13 million last October, a domain can even be a lucrative asset.

On the other side of the equation, the Government cannot argue that the public interest in preventing copyright violations is as important as its interest in public safety or collecting revenue. Clearly, the Government has some interest in preventing copyright violations. The question then is whether preventing copyright violations is important enough to America to justify setting aside its citizens’ fundamental constitutional rights by seizing property before a hearing.

The Government’s justification for the pre-hearing seizure is not made clear by its affidavits. In its November 2010 affidavit, the Government was claiming that the seizures of domains that provide links to copyrighted material were necessary to prevent third parties from “acquiring the names and using them to commit additional crimes” and “continuing to access” the websites. Commentators were critical of this justification because it is so unlikely that the seizure will prevent anyone from accessing the material and even more unlikely that a third party would take over the domain name. In the most recent affidavit, the Government limited the justification for seizure to the vague claim that the websites were being used to commit or facilitate a crime.

On balance, ownership of a domain is too important a private right and preventing copyright infringement is not an important enough public goal to justify seizure without prior notice or hearing. In the last 50 years, the courts have trended toward due process protection, even for procedures that had been traditionally permitted. In light of that trend, the Government’s basis for setting aside due process requirements should be found to be insufficient. Without notice and hearing, these seizures violate the Fifth Amendment.

2. Seizures of Protected Speech Without a Hearing Violates The First Amendment.

Since the seized domain names are for websites that, at least arguably, contain speech, the seizures must also comply with the freedom of speech provisions of the First Amendment. Generally, the First Amendment does not permit prior restraint, which is when the Government censors material before it is distributed. The Supreme Court has deemed prior restraint as “the most serious and the least tolerable infringement on First Amendment rights.” Instead of prior restraint, courts typically require the Government to allow the publication of the speech and then to sanction the offending party afterward.

There is a deepening debate about whether the domain name seizures are a prior restraint that violates the First Amendment. As Techdirt points out, like with due process, the Government must provide prior notice and hearing before it restrains “potentially protected speech, with the intent to take material out of circulation.” Seizing an entire domain has the hallmarks of a prior restraint because in doing so, ICE is indiscriminately taking both infringing and non-infringing material out of circulation.

On the other hand, supporters of the constitutionality of ICE’s actions, such as Terry Hart, point out that the Supreme Court has permitted prior restraint of certain items, such as obscene materials or threats to national security. However, even these supporters recognize that these exceptions are premised on the Government ensuring a prompt judicial determination. Hart stated that “in effect, the Court recognizes the danger that too long of a temporary restraint on speech-related items can have the effect of a final restraint.” While true, this analysis does not address the differences between obscene material and links to infringing material. Additionally, it would not save ICE’s procedures because the Government has not, in fact, provided an immediate hearing on the seized domains.

Even if the types of sites that have been previously targeted, often consisting of links to other sites, were not a form of protected speech, there is still concern that endorsing these seizures would ultimately lead to the Government seizing the domains of sites expressing viewpoints it deems dangerous. ICE Director John Morton told Politico that the Government was not interested in going after bloggers or discussion boards. Morton said, “We’re not about what is being said by anybody. We’re about making sure that the intellectual property laws of the United States, which are clear, are enforced. When somebody spends hundreds of millions of dollars to develop the next movie or a billion dollars to develop the next heart medicine, the innovation and the enterprise that went into that effort is protected as the law provides. It’s that simple.”

Many commentators are not comforted by the Government’s assurance that they will not use their seizure power to attack anti-establishment viewpoints. Libertarian website, The Activist Post, declared after a round of seizures last month that “we are rapidly approaching a day where information can no longer flow freely on the Internet. We better wake up and share these stories with everyone we know, because tyranny is fast approaching.”

Although we are not there yet, this is a legitimate concern. Even if the Government does not directly go after certain types of speech, what is to stop the DHS from only going after copyright violations on sites with subversive opinions and ignoring copyright violations on pro-Government sites? The effect would be the same as any other prior restraint of speech.

3. There Is No Concern That The Accused Will Flee With Their Domains.

Certain constitutional rights sometimes take a backseat to crucial practical considerations, such as the Government’s concern that property involved in a crime will disappear if it is not immediately seized.

For example, the Supreme Court has allowed seizures without prior notice or hearing in a case involving the seizure of a yacht believed to be used to transport drugs. The Court was swayed by the fact that a yacht is the “sort [of property] that could be removed to another jurisdiction, destroyed, or concealed, if advance warning of confiscation were given.” However, in a later case, the Court found such a seizure against real estate “which, by its very nature, can be neither moved nor concealed,” to be unconstitutional.

A domain is not the same as real estate. Like real estate, a domain has an address and space within which the owner can build, but that space is not confined to finite borders or an address the way that real property is. Despite the differences, a domain is more like real estate than it is like a yacht. A domain can be sold, but it cannot be moved or concealed from the Government without defeating the purpose of having a domain in the first place.

4. There Is An Unacceptable Risk Of Wrongful Seizure.

ICE also unwittingly made its critics’ point last month when it mistakenly seized the domain names of 84,000 websites. The Government had falsely accused the sites of child pornography. This type of large-scale, disastrous mistake illustrates the constitutional deficiencies of the seizures.

To be clear, the Constitution does not demand that the Government always be right. For the Government to be able to effectively seek justice, falsely accused and falsely punished citizens are inevitable tragedies. However, the Constitution does require the Government to institute sufficient procedures that reasonably protect a person’s freedom and property from a wrongful taking.

In many ways, the whole point of due process is to protect citizens from wrongful Government action. The Supreme Court has explained that the right to notice and a hearing prior to a government seizure is for the purpose of enabling an individual “to protect his use and possession of property from arbitrary encroachment-to minimize substantively unfair or mistaken deprivations of property.”

Supporters of the ICE seizures will point to the fact that, despite the lack of notice and hearing, a seizure cannot occur without a judge finding that the Government’s affidavit demonstrates probable cause. However, critics get no comfort from the fact that ICE cannot kick down your virtual door without a judge’s sign off. Last week, during a House Judiciary Subcommittee on Intellectual Property, Competition, and the Internet, California Congresswoman Zoe Lofgren grilled the Obama administration’s Intellectual Property Czar Victoria Espinel about the Constitutional shortcomings of the ICE domain seizures. Espinel attempted to argue that a judge’s sign off amounted to due process. Lofgren tersely countered by saying “With all due respect, judges sign a lot of things.”

See the exchange and Lofgren’s full line of questioning in the video below:

Lofgren makes a good point. Several other commentators have pointed out that judges signed off on the affidavits despite numerous factual and technical errors. The perception that the judge’s review was inadequate was certainly not helped by the fact that Magistrate Judge Margaret Nagle literally used a rubber stamp, rather than a pen, to sign the December affidavits.

In addition to doubts about the adequacy of the factual review, critics such as Oregon Senator Ron Wyden have argued that depriving domain owners of due process is especially problematic because it is still unclear whether certain seized domains are actually violating copyright law. Wyden wrote a scolding lette to the Director of ICE and the Attorney General demanding answers and expressing concern about denying website owners a chance to defend themselves prior to seizure because “there is an active and contentious debate about when a website may be held liable for infringing activities by its users.” Wyden added that the domain seizures “could function as a means of end-running the normal legal process in order to target websites that may prevail in court.”

5. Targeted Sites Are Not Given An Immediate Opportunity To Reclaim Their Domain.

The final Constitutional problem is that not only is there no notice and hearing before the seizure, there is not an immediate and meaningful hearing after the seizure. Most exceptions to due process and freedom of speech restrictions are premised on the promise of an immediate opportunity to defend yourself after the Government has taken your property. Operation In Our Sites has included no such immediate hearing. In fact, according to reports, weeks after the November seizures, site owners were still waiting to learn what it is that their sites had been accused of.

The lack of an immediate opportunity to reclaim a domain is not the only problem. Even if a post-seizure hearing occurred within hours of the seizure, it may be too late to truly compensate a domain name owner’s loss caused by an erroneous seizure.

Commentators such as Larry Downes have correctly pointed out that the seizure of a domain name is somewhat unique because a seizure may work to shut down a website indefinitely. A domain seizure is not like when the Government seizes a car used to solicit a prostitute. If the car is later returned, it still runs as well as it did when it was taken. With a domain name seizure, if a user attempts to access a website, but instead finds himself face-to-face with the DHS/ICE seal, even if the domain is later restored, that user will probably never return to the site.

It is even worse for those 84,000 websites falsely accused of child pornography. A visitor attempting to access these websites got an additional message stating: “Advertisement, distribution, transportation, receipt, and possession of child pornography constitute federal crimes that carry penalties for first time offenders of up to 30 years in federal prison, a $250,000 fine, forfeiture and restitution.”

Even though these websites were completely innocent, will users come back to sites that the government has publicly accused of child pornography?

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David Makarewicz is an attorney practicing internet law in defense of websites and blogs.  Visit Dave at Sites and Blogs or follow him @sitesandblogs to keep up with breaking Internet news affecting websites, bloggers and social media.