Internet groups defend gambling domains

American justice

It's not just the online gambling sites that are worried about the implications of Kentucky's attack on online gambling domain names.

Several Internet industry organizations banded together to submit a Friend-of-the-Court brief with the Kentucky Supreme Court last week in support of the Court of Appeals decision that domain names are not "gambling devices" that can be seized under Kentucky law.

The Internet Commerce Association, Center for Democracy and Technology, Electronic Frontier Foundation, Media Access Project, U.S. Internet Industry Association, Internet Commerce Coalition and the American Civil Liberties Union of Kentucky all signed the brief.

"The ICA is pleased to be in such distinguished company on this brief. ICA has been involved in this case since Kentucky began its unlawful domain name seizures," said ICA President Jeremiah Johnston after the brief was filed.

Johnson said that if the domain seizures had been upheld by the courts, it would have set a precedent that any government around the world could move to seize a domain name simply because the associated site contains information that offends its laws, without proper jurisdiction or due process.

"That result would be a body blow to free speech and a huge threat to the value of domain names. The ICA will continue to speak out and act in cases where the fundamental rights of domain name registrants are violated."

The case began in September when the Commonwealth of Kentucky convinced a state court judge to order the seizure of 141 domain names linked to online gambling businesses. Kentucky claimed the domain names were "gambling devices" and therefore subject to seizure as part of illegal gambling activity.

An appeals court has since overturned that ruling, but state officials have appealed that ruling, prompting the Friend-of-the-Court brief from the ICE, EFF, CDT and the ACLU of Kentucky.

"No state can order a domain name registrar over which it does not have jurisdiction to do anything. The commonwealth simply hasn't satisfied its burden here," said EFF Senior Staff Attorney Matt Zimmerman. "Without these important protections, no Web site would be safe from arbitrary decisions by foreign courts to silence online content that they don't like."

John Morris, general counsel for CDT, pointed out that under Kentucky's legal theory any government in the world would be able to seize a domain name if the site has content it doesn't like.

"Such a theory, if upheld, would be devastating to free expression around the world," Morris said.

Along with urging the Supreme Court of Kentucky to uphold the Appeals Court ruling, the organizations are also asking the court to recognize other legal principles that would prevent an attempted seizure of domain names even if Kentucky amended its law to explicitly declare domain names in its gambling laws.

They argue that the seizure of domain names would violate the Constitution's First Amendment and would also be preempted by the Commerce Clause of the Constitution.

The brief also points out that the state's actions would conflict with the Federal Communications Decency Act and violate the due process rights of domain name registrars.

The seizure of domain names also imposes unrealistic and potentially devastating burdens on domain name owners to implement geographic filtering of their content so that it can't be viewed in jurisdictions where it may be considered unlawful.

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