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The steps the administration had taken to rein abuse of civil asset forfeiture were undermined on Wednesday when President Barack Obama signed an executive order that ignores Fifth Amendment protections for due process, authorizing the seizure of property from those who are merely suspected of cyber-crime.
In January, Attorney General Eric Holder announced restrictions on the Justice Department's "equitable sharing" program. This program allowed federal agencies to "adopt" property seized through civil asset forfeiture and return up to 80 percent of the proceeds to state and local law enforcement. Though a good first step, significant loopholes remain that put innocent people's property at risk.
And just this week, the Justice Department placed new restrictions on the use of civil asset forfeiture in cases in which "structuring" -- frequent cash deposits under $10,000 -- is suspected. The Internal Revenue Service has seized bank accounts of legitimate business owners -- many of whom are never charged with a crime -- who were suspected of trying to avoid federal reporting requirements mandated by the Bank Secrecy Act. The new policy requires probable cause for other federal crimes in addition to structuring, absent criminal charges.
But President Obama's new executive order takes a big step back. It allows seizures of suspected hackers' property without the constitutional protection of due process of law. Just as concerning, the order isn't limited to those suspected of cyber-crime. Section 3 of the order puts at risk people who may have unwittingly received "any contribution or provision of funds, goods, or services" from an individual suspected of hacking.
"For those persons whose property and interests in property are blocked pursuant to this order who might have a constitutional presence in the United States, I find that because of the ability to transfer funds or other assets instantaneously, prior notice to such persons of measures to be taken pursuant to this order would render those measures ineffectual," the order states in Section 7. "I therefore determine that for these measures to be effective in addressing the national emergency declared in this order, there need be no prior notice of a listing or determination made pursuant to section 1 of this order."
Though he claims that this executive order is "meant to protect our national security, personal privacy and civil liberties," President Obama, with his pen and phone, may have put innocent people's property and due process rights at risk through an overreaching federal government.