Is A Gov Shutdown Of A Website Without A Court Order Ilegal? Supreme Court Suggests Yes

The Justice Department shut down a controversial boarding pass generator using a letter from the Transportation Security Administrator, something I called possibly illegal in a previous post, given that no court order was obtained. After talking a bit with people in the know, I've found a few more facts and a relevant Supreme Court case that held that a public body that issued a list of 'harmful' books to a book dealer intimidated and suppressed the book dealer and thus violated the Constitution.

More, including the letter from Christopher Soghoian's hosting provider, after the jump...

The case is Bantam Books, Inc vs. Sullivan from 1963 where the Supreme Court found:

The Rhode Island Legislature created a Commission "to educate the public concerning any book . . . or other thing containing obscene, indecent or impure language, or manifestly tending to the corruption of the youth as defined [in other sections] and to investigate and recommend the prosecution of all violations of said sections." The Commission's practice was to notify a distributor that certain books or magazines distributed by him had been reviewed by the Commission and had been declared by a majority of its members to be objectionable for sale, distribution or display to youths under 18 years of age.

Such notices requested the distributor's "cooperation" and advised him that copies of the lists of "objectionable" publications were circulated to local police departments and that it was the Commission's duty to recommend prosecution of purveyors of obscenity. Four out-of-state publishers of books widely distributed in the State sued in a Rhode Island court for injunctive relief and a declaratory judgment that the law and the practices thereunder were unconstitutional. The court found that the effect of the
Commission's notices was to intimidate distributors and retailers and that they had resulted in the suppression of the sale of the books listed. In this Court, the State Attorney General conceded that the notices listed several publications that were not obscene within this Court's definition of the term. Held: The system of informal censorship disclosed by this record violates the Fourteenth Amendment.

In the FBI's take down of Soghoian's site, agents asked the TSA to draft a letter to security researcher Christopher Soghoian. On the Friday night in October when agents interviewed Soghoian and his academic adviser, they handed him the letter and the two asked to leave to go shut down the site, according to Soghoian's account. The agents said that was unnecessary since they'd already gotten the site shut down.

Later Soghoian got the following email from his hosting provider, DreamHost:

Hello Christopher,

We have recently been contacted by an FBI Special Agent by the name of Dorian Deligeorges, based out of Minneapolis. The FBI has been notified
by the FAA of the following site, hosted under your account:

http://www.dubfire.net/boarding_pass/

They are concerned that this tool could serve to enable and facilitate criminal activity, posing a threat to national security. Upon closer

review we do share their concerns, and as such have disabled it for the time being. We ask that you not re-enable it.

We understand the stated purpose of the tool is not to assist in illegal activity but rather to make a point about the rather lackluster and

'cosmetic' security measures provided by the TSA and Department of Homeland Security. However, as a practical matter the tool could easily
attract the attention of those who might use it for malicious means, and we are not comfortable with its continued hosting on our servers for this
reason. I am sorry for any trouble or inconvenience this may cause.

If you have any questions, please let us know.

Jeff

In short, the takedown letter was used to shut Soghoian up (the security hole remains) In fact, the letter was used as quasi-official censorship via intimidation.

Of course, the feds could argue (I'm waiting for a call back) that they had nothing to do with the site coming down since it was the provider who took it down and the feds never even threatened DreamHost. (Dreamhost has not replied to multiple requests for comment.)

But that's exactly the logic the Supreme Court rejected over 40 years ago. If the feds were so sure, they had a good case, why not go to a judge, exactly as they did to get the 2 a.m. search warrant for Soghoian's home?