August 4, 2011 | By corynne mcsherry

Court Refuses to Return Seized Domain Name, Claims Shutting Down Speech Doesn't Cause a Substantial Hardship

In a cursory opinion issued today that left us scratching our heads, a federal judge has ruled that the government does not have to return a domain name seized by Immigration and Customs Enforcement (ICE), because its seizure did not create a substantial hardship. Really?

Puerto 80 is the Spanish company behind popular sports streaming sites Rojadirecta.com and Rojadirecta.org, which were both seized by U.S. ICE earlier this year -- even though a Spanish court found they did not violate copyright law. Puerto 80 filed a petition to have the sites released pending a trial on the merits of the case. The petition explained that government's seizure and continued control of the site was seriously damaging Puerto 80's business and also infringed on its readers' First Amendment right to access its content. EFF, with co-amici Public Knowledge and Center for Democracy and Technology, submitted an amicus brief that elaborated on the First Amendment issues.

Puerto 80's petition explained that while the company can host content elsewhere, its usual visitors might not know how to find it. Too bad, said the court. "Rojadirecta has a large internet presence and can simply distribute information about the seizure and its new domain to its customers," it declared. Perhaps the court thinks Puerto 80 should buy some Google ads? Would the court come to the same conclusion if the site in question was youtube.com? (Maybe so, which is even more frightening).

And the court's First Amendment analysis is flatly wrong. Puerto 80 (and EFF) explained to the court that cutting off access to the site also meant cutting off access to clearly legal content, such as discussion forums. The court dismissed these concerns with a wave:

Although some discussion may take place in the forums, the fact that visitors must now go to other websites to partake in the same discussions is clearly not the kind of substantial hardship that Congress intended to ameliorate in enacting § 983 [the statute that allows for the return of seized property].

Here's the thing: the Supreme Court doesn't agree. The fact that you can get information via a second route does not mean that there is no speech problem with shutting down the first one. In a 1939 case, Schneider v. New Jersey, for example, the Supreme Court held that

one is not to have the exercise of his liberty of expression in appropriate places abridged on the plea that it may be exercised elsewhere.”

It repeated this basic tenet some forty years later in Va. State Bd. of Pharmacy v. Va. Citizens Consumer Council, Inc.:

We are aware of no general principle that freedom of speech may be abridged when the speaker’s listeners could come by his message by some other means . . . .”

As if misapplying the relevant substantive First Amendment analysis weren't bad enough, the court failed to even address the fatal procedural First Amendment flaws inherent in the seizure process: namely, that a mere finding of "probable cause" does not and cannot justify a prior restraint. How the court can conclude that the seizure satisfies the First Amendment in this regard is a mystery.

This ruling is profoundly disappointing, to say the least. And it certainly doesn't bode well for the rights of folks whose websites might be targeted under the PROTECT-IP Act now pending in Congress.


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