The Question Is Whether “Kafkaesque” or “Orwellian” is the Appropriate Adjective:

I’ve blogged about this a couple of times before [here and here, for starters], but this is, alas, an issue that is not going away. The federal government appears to have decided that the best way to control unlawful conduct on the Net is to use the technique of “domain name seizure” – using some variant of the criminal forfeiture laws to proceed against alleged wrongdoers by persuading a court to “seize” their domain names — that is, to order their domain name registry or registrar to pull the name from the database so that, Internet-wide, a request for the website at that URL will come back empty.

It is a nightmarish scenario (literally), and we should all be up in arms about it. I’ve never paid much attention, to be candid, to the law of criminal forfeiture – but I’m going to start now. If you want a sense of what “law” looks like in a regime like this – where prosecutors can waltz into a judge’s chambers without the inconvenience of having a lawyer on the other side, or even a defendant that has notice that there’s a proceeding against him/her, and walk out with an order that makes your website vanish from the Internet; a regime under which you can wake up one morning and find that you have been “disappeared” without anyone having even given you any advance notice that you were in trouble with the law — take a look at some of the documents filed in the case of the website. [The case, in the Southern District of NY, is captioned “Puerto 80 Projects v. US,” — the facts are nicely summarized in this brief, and a collection of related documents can be found here]. Prof. Mark Lemley is representing the owner of the seized domains, which is encouraging – Lemley’s an outstanding lawyer, and the court will hear good arguments why the seizure process is both outrageous and unconstitutional. Lemley and I (along with Dave Levine) co-authored a Law Professors’ Letter in opposition to Senator Leahy’s “Protect-IP Act”, which would authorize these seizures in cases where the feds have evidence that a site is “dedicated to [copyright or trademark] infringing conduct.” The Letter (on which we collected over 100 signatories) is posted here.

As it happens, I reread Kafka’s “The Trial” this summer, in a wonderful and highly recommended new translation by Breon Mitchell. It turns out that it’s actually quite hilarious – as in laugh-out-loud funny. I recall reading once that Kafka used to read his stuff out loud for friends and that they’d all end up laughing hysterically – same for Chekhov — but I never really understood how that could be true until I read this version.

But if we reserve the adjective “Kafkaesque” for the truly dark side of the developments he describes – that dreamlike terror that comes from having sinister forces in the State apparatus focused on your destruction and having no way to find out why, or what you can do about it — I think a world in which prosecutors are routinely proceeding in this way merits use of the term.