I've been asking a question that I think the EFF and others have been asking: How the heck is this Constitutional? The problem isn't just free speech issues,

I've been asking a question that I think the EFF and others have been asking: How the heck is this Constitutional? The problem isn't just free speech issues, but rather due process issues, since the takedown orders can occur without any adversarial hearings. In other words, the prosecutor goes to the judge, presents evidence, and the judge, without hearing from the defence, decides to issue the order. The 5th Amendment to the US Constitution states in part that no person shall be deprived of life, liberty, or property without due process of law. This seems to fly in the face of that. How fast can you say "Star Chamber?" I would certainly hope that should this pass the first time a prosecutor goes to a judge with a request for this, the prosecutor strikes down this provision of the law on these grounds. I would certainly hope that such a ruling would be upheld on appeal. and there is some precedent for this. The Third Circuit recently had a magistrate judge refuse to sign a subpoena for cell site location data holding that the request might constitute a 4th Amendment search and as such a warrant was required instead. When appealed, the 3rd Circuit sided with the magistrate, much to Prof. Orin Kerr's surprise (on whose blog I followed this story).