We Don't Need No Stinking SOPA

by Jacob G. Hornberger
Jan. 23, 2012

As Glenn Greenwald points out in his excellent analysis of the Megaupload case, immediately after opponents of SOPA and PIPA caused congressmen to back off from their proposed Internet legislation, the Justice Department stepped up to the plate and arbitrarily shut down Megaupload, one of the world’s largest websites. As Greenwald put it, the message from the Justice Department, whether intended or not, was clear:

Congratulations, citizens, on your cute little “democracy” victory in denying us the power to shut down websites without a trial; we’re now going to shut down one of your most popular websites without a trial.

I wish to amplify on the due process considerations that Greenwald emphasizes in his blog post.

The term “due process of law” stretches back to the year 1215, the year of Magna Carta. In that document, King John acknowledged that his power over the English people was not total. He agreed that no longer could the King (or the British government) seize people or their property in violation of the “law of the land.”

That phrase — “law of the land” — ultimately evolved into the phrase “due process of law,” a phrase that our American ancestors incorporated into the Fifth Amendment to the Constitution.

While there has never been a precise definition of “due process of law,” at a minimum it has come to entail the concept of notice and hearing. Before the government can deprive a person of life, liberty, or property, due process requires that notice first be given to him and then he be accorded a hearing or trial at which he has the opportunity to contest what the government is doing to him.

Consider, for example, the Megaupload case. The government wants to punish the owners of that website for allegedly engaging in intellectual piracy. The government is convinced that the website owners have violated federal criminal law. What many U.S. officials would like to do, in their ideal world, is simply arrest the malefactors and punish them with fines and incarceration, just as they do with some suspected terrorists.

The problem is that our constitutional order and legal system don’t permit them to do that with respect to intellectual piracy. That’s not to say, of course, that our constitutional order and legal system permit them to do so with suspected terrorists either. But they simply haven’t gotten to the point where they’re willing to stretch the no-due-process principle to intellectual piracy cases. (We’ll omit from this discussion the U.S. government’s assassination program, which, of course, deprives a person of life without due process of law.)

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