How the U.S. Government Was Able to Seize BitTorrent Domains Without Due Process

U.S. seizes domain names

By now, you’ve heard how the United States Department of Justice seized the domain names of several commercial websites that were accused of engaging in counterfeiting.  Among these were some file sharing sites.  If the seizure shocks your idea of fair play, you’re not alone.  How exactly did the U.S. government seize these domain names, without giving the site owners a chance to defend themselves?

Ars Technica has a fascinating article detailing the seizures.  In short, the government filed an affidavit to support the seizure request.  In that affidavit, the government trotted out data and statistics it had received from those in the movie and music business.  As Ars Technica reported,

[Immigration and Customs Enforcement (ICE) Special Agent Andrew] Aeynolds doesn’t attempt to hide his obvious reliance on the content industries; his affidavit is littered with comments like, “according to the MPAA…” and “based on my participation in the investigation and my discussion with MPAA representatives…” In the end, ICE got its way; a US Magistrate Judge signed off on the seizure order, and the domain names,,,, and were seized and redirected to an ICE warning image.

Even more disturbing, the seizures do not appear to be part of any criminal case.  If they were, then perhaps an argument could be made that the seizures were similar to a seizure of physical property as part of a criminal investigation.  As Ars Techicna noted, though,

the case was closed after the order was executed. In searching the federal courts, we can find no evidence that these five sites are actually being prosecuted. The domains were simply seized, and while it did happen with a court order, the sites were not given any chance to respond and none appears to be forthcoming.

Wow.  Don’t confuse my feelings on theft of an author’s work.  It stinks.  If we want content creators to keep producing content, we need to find a way to make sure that they get paid.  Freeloaders are only shooting themselves in the foot in the long run.

But is this really how we want our government to go about doing business?  Should our government be able to seize a domain name, without giving a site owner a chance to defend himself?

Shame on you, freeloaders.  But even more so, shame on our government officials.  You’ve stained the reputation of the United States, and conveyed to the world, rightly or wrongly, that our leaders whore themselves out to an industry willing to pay enough money.

Now that I’ve effectively insulted those on both sides of the argument, let me know in the comments if I’m missing the boat here.  Where do you fall in this debate?

Undue process: how Uncle Sam seized BitTorrent domain names [Ars Technica]

Evan Kline

Hello, I'm Evan. I write about tech from my perspective – that of the average 40-something tech geek. You can also find me on Twitter and at my real-life job as a lawyer.    MORE ABOUT ME.


  1. “Even more disturbing, the seizures do not appear to be part of any criminal case. If they were, then perhaps an argument could be made that the seizures were similar to a seizure of physical property as part of a criminal investigation.”

    Let’s be Devil’s advocate here. Let’s say you have a stash of cocaine. The police seize it, but choose not to prosecute you.

    Does the mere choice of whether or not to prosecute impact the validity of the seizure? I think the issue of authorities not prosecuting is the tail, with the actual seizure being the dog.

    Ir does seem that in either case (domain names or cocaine) the parties from who the goods were seized have the option of filing a lawsuit for return of the goods.

    I’m certainly not an expert on criminal law, though :)

    • I don’t practice criminal law, but even with your example, I’m bothered that the government can shift the burden of proof – go around, seizing what they want with flimsy affidavits, and leave it to the accused to prove his/her entitlement to get it back. My initial post was more from the gut, rather than a legal analysis. It just sits wrong with me that we have a government that acts that way.

      • I’m curious that this phrase means, exactly:

        “based on my participation in the investigation”

        I think I’ll delve into the affidavit when I get a chance. It could mean that the agent downloaded files and then verified the illegal nature with the copyright holders. Or it might mean something else.

        I haven’t read the original article, because I’m fairly sure that site is blocked for me :)

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