One of the many things that separate child pornography crimes from other crimes is the federal government's ability to preemptively take down sites accused of involvement in child pornography. As with defendants in federal drug crimes, racketeering and certain other crimes, child pornography defendants may have their assets seized with no more authority than a search warrant they are not notified about or allowed to fight. Civil libertarians and child porn attorneys like me question the constitutionality of this practice – and more fuel was added to the debate earlier this month when the federal government wrongly seized 84,000 websites hosted on mooo.com. The Department of Homeland Security apparently wrongly believed that mooo.com was involved with storing, displaying or selling child pornography, and seized it along with the nine other suspect domains. According to a Feb. 18 story in The Register, mooo.com is used by the registrar FreeDNS to direct Internet users to 84,000 domain names, most of which are websites owned by individuals and small businesses. Because of the DHS mistake, visitors to any of those sites on the night of Feb. 11 would have found not the sites they expected, but a redirect to a banner saying the site had been seized by DHS under the federal law that allows the government to seize property used in a crime. It then displayed this message: "Advertisement, distribution, transportation, receipt, and possession of child pornography constitute federal crimes that carry penalties for first time offenders of up to 30 years in federal prison, a $250,000 fine, forfeiture and restitution." According to PC World, DHS didn't reverse its incorrect seizure until the evening of Feb. 13 – about two days later. At that time, FreeDNS wrote that for technical reasons, it would likely take another three days for the change to be reflected all across the Internet. Thus, it was as many as five days before the incorrect child pornography accusations disappeared from the sites. A spokesperson for the Electronic Frontier Foundation told The Register the restraint on free speech was likely to be illegal under current court rulings. As a child pornography lawyer, I think this case is a fine example of why secret search warrants are a terrible idea. By seizing first and double-checking later, DHS wrongly accused 84,000 people and small businesses of involvement in child pornography. Law enforcement officers make mistakes at work just like everyone else, of course. The civil forfeiture laws use judges to review search warrant requests as a safeguard – but those judges can only work with the information the mistaken officers provided. During the two to five days the DHS message was on their sites, all of the visitors – who could have been a handful or thousands of people – would have seen a message implying that they were involved in child pornography crimes. As a child pornography attorney, I know from experience that a mere accusation of this serious crime can quickly lead to a "conviction" in the court of public opinion, broken relationships and even firings. With that much at stake, I believe our system can and should do better.
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