David Makarewicz, Contributing Writer
Activist Post

Last week, Bryan McCarthy, the 32 year old operator of ChannelSurfing.net, was arrested on charges of criminal copyright infringement.  ChannelSurfing.net was one of the streaming sports sites that had its domain seized by federal authorities shortly before the Super Bowl as part of the “In Our Sites” program, run by the Department of Homeland Security (DHS) and the U.S. Immigration and Customs Enforcement (ICE).  Prior to the seizure, McCarthy reportedly made more than $90,000 from advertisements on his site.

This arrest has once again raised questions about the In Our Sites program, in which the Government has seized thousands of domains accused, but not convicted, of copyright infringement, illegal streaming of sporting events, selling black market goods and distributing child pornography.  Critics ranging from bloggers to individual rights advocates to Senators have questioned the constitutionality of these seizures.

The most serious constitutional issues 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. READ FULL ARTICLE