Carpe Omnia: Civil Forfeiture in the War on Drugs and the War on Piracy

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Annemarie Bridy

This article explores the evolution of the federal government’s civil asset forfeiture practices from the war on drugs in the 1980s and 1990s to the currently escalating war on intellectual property piracy. I argue that recent developments in the war on piracy provide strong proof that legislative reform of the federal civil forfeiture system in 2000, which was intended to make the system fairer to property owners and less prone to abuse by law enforcement agents, did not substantially succeed in achieving either goal. The constitutional problems that remain in the federal civil forfeiture system are most acute with respect to the ex parte seizure of property alleged to facilitate crime—so-called facilitation property. Within that category, Internet domain names allegedly tainted by copyright crime present unique problems. “Property” is the pigeon hole into which domain names have been stuffed, but they are different from physical property in ways for which civil forfeiture law should account. Under a straightforward application of existing Supreme Court precedents, their ex parte seizure by federal agents fighting online copyright crime offends both due process and the First Amendment. To achieve deterrent effects that are transitory at best in the online environment, the ex parte seizure and civil forfeiture of Internet domain names exacts disproportionately high constitutional costs and undermines the legitimacy and accountability of law enforcement.

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