Not The Meat But The Motion (Update)
What if you woke up one morning and your blog's URL pointed to a Department of Homeland Security page that said, "Website seized for trafficking in child pornography"? That's what happened to 84,000 innocent site owners this week, and there's no guarantee it won't happen again.
It appears that our computer savvy protectors at ICE seized a primary domain without realizing that it had tens of thousand of legitimate subdomains, and perhaps a few that were less than legitimate. Windy commented:
As it happens there's was an apparent example of what can go wrong with this kind of process just the other day. According to Radley Balko, the DHS got a court order to seize the domain names of 10 sites that allegedly had child pornography on them. Apparently, the order accidentally removed an entire 2nd tier domain (kind of like removing blogspot.com instead of someblogname.blogspot.com), and over 80,000 websites were diverted to a DHS message claiming the site had been shut down for hosting child pornography.
You don't have to hate copyright to think that DMCA and related laws are slanted too far in favor of copyright holders (especially well-established content producers) to the detriment of technology companies, small content producers, and consumers. It may be that reproducing the paper-books-and-vinyl-records content licensing system in the virtual world is not the best policy.
This raises a critical distinction that's too often missed, or misunderstood. Don't confuse bad execution with bad law.
One of the foundational wrongs often discussed in the blawgosphere is the conviction of innocent people for a heinous crime, like murder or rape. There's no question that it happens. Does this mean our laws prohibiting murder or rape are wrong or bad? Of course not. These are terrible crimes, and they should be.
The problem is the manner in which the investigation and prosecution of these individuals occurs, with a thousand moving parts any of which can go wrong and produce very bad results.
In a more controversial example, what of search warrants based on stale information or executed at the wrong location? Is the solution to do away with search warrants, or to perform the function of review or execution far better? Some might hate the idea of a warrant, an ex parte application to search and seize, but most of us realize that it's a necessary method of obtaining evidence of a crime. Without search warrants, and assuming warrantless searches never occurred, concealment of crime would be a snap, and seizure of evidence or contraband would be rendered impossible.
Are we seeking a society where, in the elevation of rights over reason, crime could be committed without recourse? Few of us really want to be the victim of crime, and as much as we carefully guard our rights, we aren't so blind or simplistic as to think that crime isn't a bad thing.
Windy's comment reflects the conflation of the two independent issues. There is no law, no process, that can't be screwed up and result in harm, even massive harm, if handled carelessly or malevolently. The point of warrants is to have a neutral magistrate pass on its propriety before allowing the government to have its way with us. Before the question is put to the magistrate, the government is expected to exercise a bit of care and caution so as to be reasonably correct before pointing guns at people's heads.
In Windy's example, a few unfortunately typical problems appear to have arisen simultaneously, producing outrageous results, with 84,000 "innocent" subdomains being seized and rerouted to a DHS webpage that informed the viewer, "Website seized for trafficking in child pornography." There's nothing like grandma's recipe blog beings smeared as a kiddie porn trafficker. Try shaking off that image quickly.
The government has never shown finesse at dealing with technology, and the courts even less so. The heavy hand of law enforcement, which will attest whenever possible to its omniscience in all things under the sun, could make the effort to use a scalpel rather than a bludgeon. Yet it fails to do so with remarkable frequency, and rarely shows much concern for its failings or interest in doing it better. But this isn't limited to a domain seizure, but all things tech.
Similarly, judges who sign off on warrants need to be sufficiently aware of the weapon they're handing over to the government, as part of their oversight function in assuring that the warrants are sufficiently specific to cover no more than what's required. While it's easy to blame the government for the 84,000 victims of its ignorance, let's not forget that a judge gave his seal of approval, perhaps by rubber stamp. This isn't good enough, and whoever signed the warrant failed to fulfill his function.
But the Techland post describing this fiasco argues;
So far so good, since it's perfectly legitimate for ICE to target the bad guys. But critics of the seizures point to a seeming lack of due process. The feds determine a site to be infringing and ask a judge to sign a seizure warrant that tells the site's domain name company to transfer control of the domain name to the government, which then points it to a "seized by DHS" page. The problem is the warrants are issued ex parte, which means that the targeted website owners are not notified and don't have an opportunity to present their side of the story to the judge.
Ironically, the "critics" referred to in the paragraph is David Post at Volokh, and his criticism is bizarre, arguing that it was "outrageous" that the warrants were issued ex parte. All warrants, other than for the seizure of real property, are issued ex parte, and warrants would serve no purpose if they weren't. If the execution had been handled competently, and the only affected websites were in fact showing or selling videos of actual child pornography, should they have been left in operation while the issue was challenged?
Certainly, after the execution of the warrant, there must be due process provided for the owners of the websites to challenge the government's action, regardless of whether the government handled the matter perfectly or horribly, as here. But we don't let the wrong continue unabated, in this case children compelled to engage in sex acts with adults, while lawyers fight it out in court. The first move is to stop the bleeding. The problem is to stop only the bleeding.
Regardless of how one feels on these issues, and the right and wrong of underlying laws is invariably based on a weighing of priorities and harm, where we may hold different but legitimate opinions, the fact that the government performs its duties poorly, incompetently, stupidly, is a flaw of the government's execution, not the law. There's plenty of blame to be placed, but let's make sure we place it where it belongs.
Update: At the time that Windy posted his comment, Radley Balko had not (that I can tell) posted anything about this case. He has now.