Tactics for Seizing Rogue Web Sites

The affidavit of the agent in support of the warrant included factual assertions that he downloaded multiple illegal copies of copyrighted media from the site, detailed his expertise in such investigations and explained technical definitions. The application for the federal warrant detailed probable cause to believe that the property was subject to forfeiture per 18 U.S.C '2323, which permits forfeiture of property used to facilitate copyright crimes.

By state analog, N.Y. Criminal Procedure Law Article 690, for example, similarly requires that reasonable cause be met demonstrating that a crime was committed and that evidence of the crime may be found at a certain location.

Domain Name Must Be Owned

In Commonwealth ex rel Brown v. Interactive Media Entertainment and Gaming Association, 306 S.W.3d 32 (Ky. 2010), the state of Kentucky initiated an investigation of illegal gambling on various Web sites, resulting in the seizure of 141 domain names for forfeiture. (See also, Interactive Media Entertainment and Gaming Association v. Wingate, 320 S.W.3d 692 (Ky. 2010).) In response, attorneys representing the domain names sought a writ of prohibition against the seizure, which was granted by the Kentucky intermediate appellate court. Subsequently, the Supreme Court of Kentucky reversed the lower court.

In a decision by Deputy Chief Justice Mary C. Noble, Kentucky's high court determined that those seeking the writ and claiming an interest in the property were the purported domain names themselves and associations of anonymous domain registrants, neither of which satisfied the basic requirements of standing. Counsel for the domains had contoured their suit to ostensibly forestall any identification of their human clients and thus avoid potential future criminal prosecution. But the court determined: “Just as with real property, a domain name cannot own itself; it must be owned by a person or legally recognized entity.”

Moreover, the gaming associations that were seeking the writ failed to disclose who they represented and therefore failed to satisfy their burden of demonstrating that their individual members had standing, thus falling short of the requirements of Kentucky's associational standing rule. Associational standing requires some assurance that members actually have an interest in the property. Thus, the associations were required to specifically identify some of the registrants they represent and proof of injury.

First Amendment Issues

Critics of domain seizures have contended that the seizures may violate the First Amendment of the U.S. Constitution. Opponents contend that matters presumptively protected by the First Amendment may be initially seized based on probable cause. The U.S. Supreme Court has determined that “an application for a warrant authorizing the seizure of materials presumptively protected by the First Amendment should be evaluated under the same standard of probable cause used to review warrant applications generally.” New York v. P.J. Video Inc., 475 U.S. 868 (1986).

Similarly, issues of freedom of expression have arisen in an analogous area, that of the abusive registration of domain names, also known as “cybersquatting.” There is no required pre-screening done by the Internet community of domain registrants filing potentially problematic names. It has been asserted that this absence of regulation ostensibly permits easy registrations that stimulate business growth, permits the exercise of free expression and reflects the practical problems inherent in determining, without extensive investigation, who is a bona fide holder of the rights to a name.

A recently introduced bill before Congress, known as COICA, for Combating Online Infringement and Counterfeits Act, has been touted as a possible effective weapon in the battle against rogue Web sites. The Justice Department would be able to seize a site's domain name and require any credit card or bank with U.S. operations to cease doing business with the accused pirate. This would put within the law's reach infringing sites that are foreign sites with Web masters outside of the United States. (See, S.3804 (2010) and Report of the 111th Congress, Senate 2d Session, 111-373, Combating Online Infringement and Counterfeits Act (Dec. 17, 2010).)

But the bill faces opposition from civil liberties groups that contend it violates the First Amendment and would be a dangerous precedent with serious negative consequences for free expression, global Internet freedom, and the Internet's open and global architecture.

In cyberspace, the activities of ostensible rogue Web sites ' many attacking U.S. commercial interests or preying on our citizens in a variety of endeavors ' include copyright infringement, illegal gambling and pornography, to name a few. Web site domain seizures may be the 21st-century digital equivalent of 20th-Century gang busting police raids on the haunts of criminal organizations. In place of the remnants of destroyed contraband, a subsequent visitor to these targeted Web sites may instead confront a message left by court order, declaring that the site has been “taken down” for certain illegal activities.

Probable Cause

One recent raid that has received notoriety concerns a search warrant issued in November 2010 by U.S. Magistrate Judge Margaret A. Nagle of the Central District of California authorizing the seizure of numerous domain names, based on the application of a federal agent. (See, Case No. 10-2822M. The search warrant and application may be accessed at http://documents.nytimes.com/requestto-seize-web-sites-for-piracy.) In issuing the search warrant and order of seizure targeting numerous domains, the court determined there was probable cause that the domains were subject to seizure and civil forfeiture for allegedly trafficking over the Internet in counterfeit goods, and actively facilitating the distribution of pirated content that included movies, songs, albums and computer software. (See, 18 U.S.C. ”2323, 2319 and 981 and 17 U.S.C. '506a.)

The affidavit of the agent in support of the warrant included factual assertions that he downloaded multiple illegal copies of copyrighted media from the site, detailed his expertise in such investigations and explained technical definitions. The application for the federal warrant detailed probable cause to believe that the property was subject to forfeiture per 18 U.S.C '2323, which permits forfeiture of property used to facilitate copyright crimes.

By state analog, N.Y. Criminal Procedure Law Article 690, for example, similarly requires that reasonable cause be met demonstrating that a crime was committed and that evidence of the crime may be found at a certain location.

Domain Name Must Be Owned

In Commonwealth ex rel Brown v. Interactive Media Entertainment and Gaming Association , 306 S.W.3d 32 (Ky. 2010), the state of Kentucky initiated an investigation of illegal gambling on various Web sites, resulting in the seizure of 141 domain names for forfeiture. ( See also , Interactive Media Entertainment and Gaming Association v. Wingate , 320 S.W.3d 692 (Ky. 2010).) In response, attorneys representing the domain names sought a writ of prohibition against the seizure, which was granted by the Kentucky intermediate appellate court. Subsequently, the Supreme Court of Kentucky reversed the lower court.

In a decision by Deputy Chief Justice Mary C. Noble, Kentucky's high court determined that those seeking the writ and claiming an interest in the property were the purported domain names themselves and associations of anonymous domain registrants, neither of which satisfied the basic requirements of standing. Counsel for the domains had contoured their suit to ostensibly forestall any identification of their human clients and thus avoid potential future criminal prosecution. But the court determined: “Just as with real property, a domain name cannot own itself; it must be owned by a person or legally recognized entity.”

Moreover, the gaming associations that were seeking the writ failed to disclose who they represented and therefore failed to satisfy their burden of demonstrating that their individual members had standing, thus falling short of the requirements of Kentucky's associational standing rule. Associational standing requires some assurance that members actually have an interest in the property. Thus, the associations were required to specifically identify some of the registrants they represent and proof of injury.

First Amendment Issues

Critics of domain seizures have contended that the seizures may violate the First Amendment of the U.S. Constitution. Opponents contend that matters presumptively protected by the First Amendment may be initially seized based on probable cause. The U.S. Supreme Court has determined that “an application for a warrant authorizing the seizure of materials presumptively protected by the First Amendment should be evaluated under the same standard of probable cause used to review warrant applications generally.” New York v. P.J. Video Inc. , 475 U.S. 868 (1986).

Similarly, issues of freedom of expression have arisen in an analogous area, that of the abusive registration of domain names, also known as “cybersquatting.” There is no required pre-screening done by the Internet community of domain registrants filing potentially problematic names. It has been asserted that this absence of regulation ostensibly permits easy registrations that stimulate business growth, permits the exercise of free expression and reflects the practical problems inherent in determining, without extensive investigation, who is a bona fide holder of the rights to a name.

A recently introduced bill before Congress, known as COICA, for Combating Online Infringement and Counterfeits Act, has been touted as a possible effective weapon in the battle against rogue Web sites. The Justice Department would be able to seize a site's domain name and require any credit card or bank with U.S. operations to cease doing business with the accused pirate. This would put within the law's reach infringing sites that are foreign sites with Web masters outside of the United States. (See, S.3804 (2010) and Report of the 111th Congress, Senate 2d Session, 111-373, Combating Online Infringement and Counterfeits Act (Dec. 17, 2010).)

But the bill faces opposition from civil liberties groups that contend it violates the First Amendment and would be a dangerous precedent with serious negative consequences for free expression, global Internet freedom, and the Internet's open and global architecture.