DOJ/FBI Seize Domain Names by Warrant

August 21, 2012. The Department of Justice (DOJ) issued a vaguely worded release at 7:30 PM on August 21 that announces the seizure of three domain names by warrant, rather than following adjudication. See also, identical Federal Bureau of Investigation (FBI) release.

The three domains are applanet.net, appbucket.net, and snappzmarket.com. Attempts to access these web sites now produces a notice that displays the seals of the DOJ, FBI, and National Intellectual Property Rights Coordination Center.

These notices state that "This domain has been seized by the FBI -- Federal Bureau of Investigation pursuant to a seizure warrant issued by a United States District Court under authority of Title 18, United States Code, Sections 981 and 2323."

The DOJ and FBI releases state that "Seizure orders have been executed against three website domain names engaged in the illegal distribution of copies of copyrighted Android cell phone apps".

These releases add that "The seizures are the result of a comprehensive enforcement action taken to prevent the infringement of copyrighted mobile device apps. The operation was coordinated with international law enforcement, including Dutch and French law enforcement officials."

These releases do not state whether the DOJ has instituted any criminal proceedings. Nor do they identify what District Court issued the warrant(s). The DOJ has not responded to questions from TLJ regarding these domain name seizures.

18 U.S.C. 981, which has long been law, pertains to civil forfeiture. It provides for forfeiture of certain items in criminal cases involving enumerated crimes. However, while it recites the Computer Fraud and Abuse Act (CFAA), it does not list any of the intellectual property (IP) crimes.

It provides that "any property subject to forfeiture ... may be seized by the Attorney General ... pursuant to a warrant obtained in the same manner as provided for a search warrant under the Federal Rules of Criminal Procedure ..."

18 U.S.C. 2323 was enacted in the 110th Congress by S 3325 [LOC | WW], the "Prioritizing Resources and Organization for Intellectual Property (PRO-IP) Act of 2008". Section 2323 is a part of Chapter 113 of the Criminal Code, which pertains to theft related crimes, including IP crimes, such as criminal copyright infringement, 18 U.S.C. 2319.

Section 2323 provides for forfeiture of certain property as a part of a criminal sentence upon conviction of certain crimes, including criminal copyright infringement.

It provides for forfeiture of "Any article, the making or trafficking of which is, prohibited under" the enumerated criminal prohibitions, such as Section 2319. It also provides for forfeiture of "Any property used, or intended to be used, in any manner or part to commit or facilitate the commission of an offense referred to" above. It also provides for forfeiture of "Any property constituting or derived from any proceeds obtained directly or indirectly as a result of the commission of an offense referred to" above.

The DOJ's procedure in the instant matters is notable for several reasons. First, Section 2323 does not refer to forfeiture of domain names. Moreover, a word search of the House and Senate floor debates on passage of the PRO-IP Act discloses that the subject of domain name seizures or forfeitures did not come up.

Hence, the DOJ is using a statute that the Congress did not foresee would apply to domain names to seize domain names.

Second, while the DOJ has seized domain names, it relies on a forfeiture statute. Forfeiture is a penalty imposed upon someone convicted of a crime. Section 2323 provides that "The court, in imposing sentence on a person convicted of an offense ..."

But there is no conviction. Moreover, the DOJ release is silent regarding whether or not there is any indictment or other charging document.

To be precise, Section 2323 does provide for pre-conviction seizures. But, these are seizures to facilitate forfeiture. It does so by referencing the forfeiture section of the Comprehensive Drug Abuse Prevention and Control Act of 1970. (This too also suggests that the Congress had forfeiture of counterfeit drugs more in mind that domain names.)

This section, codified at 21 U.S.C. 853, provides that "The Government may request the issuance of a warrant authorizing the seizure of property subject to forfeiture under this section in the same manner as provided for a search warrant. If the court determines that there is probable cause to believe that the property to be seized would, in the event of conviction, be subject to forfeiture and that an order under subsection (e) of this section may not be sufficient to assure the availability of the property for forfeiture, the court shall issue a warrant authorizing the seizure of such property."

Nevertheless, this action has the appearance, not of pre-trial seizure of property for the purposes of preservation of property pending likely forfeiture upon final conviction, but rather of seizure as the sole object and purpose of the action.

Third, forfeiture statutes pertain to taking away from criminals the things that they use to commit their crimes, and the proceeds of their criminal activities. The domain names at issue in the present action are not proceeds of criminal activity. And, to the extend that domain names are used to commit crimes, there is also an overbreadth issue. Domain names are also used for other and legitimate activities.

In short, the DOJ is playing fast and loose with its statutory authority, and in a manner that implicates due process rights.

When the Congress resumes consideration of legislation directed at online infringement and online sale of counterfeits it may clarify procedure by which domain names can be seized.

And this. The DOJ notices that have replaced the web sites at issue contain the DOJ seal. This seal prominently displays the motto of the DOJ, "Qui pro domina justitia sequitur". It lends the DOJ the appearance of ancient authority and professional propriety. Each word in this motto is Latin. But, the phrase is gibberish.