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

Abstract

As law enforcement campaigns fueled by moral panic and waged against irrepressible global black markets, the war on drugs and the war on intellectual property (IP) piracy have a lot in common. Both have demanded an outsized share of public resources, and both have been used to ratchet up the powers of law enforcement and expand the reach of criminal laws. This article traces the evolution of the federal government’s civil asset forfeiture practices from the war on drugs, beginning in the 1970s, to the currently escalating war on intellectual property piracy, revealing the surprising debt that Obama-era IP policy owes to Nixon- and Reagan-era drug policy.

I argue that recent developments in the war on piracy provide strong proof that the Civil Asset Forfeiture Reform Act of 2000 (CAFRA), 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 exact disproportionately high constitutional costs and undermine the legitimacy and accountability of law enforcement.

Keywords: war on drugs, war on piracy, criminal infringement, civil forfeiture, asset forfeiture, copyrights, domain name seizure, CAFRA, Civil Asset Forfeiture Reform Act, Operation in Our Sites, online counterfeiting, PRO-IP Act, Megaupload

JEL Classification: H82, K11, K42, O17, O34