If I left my coat in a taxi that was later impounded because, unknown to me, the driver was transporting heroin in the trunk, would I be left out in the cold?
People who used Megaupload to lawfully store and transfer files are rightfully upset that their stuff is unavailable after last week’s raid. Some groups in other countries say they are going to sue the U.S. government. Would a lawsuit like that get anywhere in a U.S. court?
The Fifth Amendment — best known for its privilege against self-incrimination — says that “private property [shall not] be taken for public use, without just compensation”. (You can impress your legally-trained friends at parties by confidently and casually referring to the Takings Clause.) Does the Takings Clause give innocent Megaupload users a right to be paid the value of the files they are being deprived of while the feds use the servers on which those files are stored to prove their case against Kim Dotcom and company?
Back in 2008, Ilya Somin and Orin Kerr had a conversation on the Volokh Conspiracy discussing this question of whether the Fifth Amendment protects innocent third parties who lose property in a criminal investigation. If you read that commentary you will see that a case over the Megaupload takedown might be tough for a number of esoteric reasons, not the least of which is Supreme Court precedent.
There are some face-value problems with a case like this as well. Has the government taken the property for a “public use”? One could argue that the reason the servers (including the innocent content) were seized was for the so-called public good of going after piracy. But then the innocent content is not being “used” in connection with the prosecution — it just happens to be there.
I do not pretend to know the answers to this inquiry, and I’m relying on sharper Constitutional minds than mine to leave some good comments. (If you know Ilya Somin or Orin Kerr, send them a link to this post!) All I know is that it does not seem fair that users of the cloud should so easily be deprived in the name of law enforcement.
- Megaupload takedown reminds us why website terms and conditions can be important (internetcases.com)
- Megaupload customers who lost their files banding together to sue FBI (venturebeat.com)
- Megaupload: What’s Next for Founders, Users? (informationweek.com)