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EFF Reporting the Kentucky Court of Appeals Overturned Trial Court
Appellate Court reverses trial court order seizing gambling domain names

 2:22 am on Jan 21, 2009 (gmt 0)

From the EFF site:

The Kentucky Court of Appeals today granted petitions by the Interactive Gaming Council (IGC) Interactive Media Entertainment and Gaming Association, Inc. (iMEGA) to overturn an earlier trial court ruling authorizing the seizure of domain names owned by operators of overseas gambling websites. While challenged on several additional fronts -- including on a wide range of Constitutional grounds by EFF and its fellow amici the ACLU of Kentucky and the Center for Democracy and Technology (CDT) -- the Court overturned the prior ruling based on an interpretation of Kentucky's "gambling device" forfeiture statute:

[I]t stretches credulity to conclude that a series of numbers, or Internet address, can be said to constitute a "machine or any mechanical or other device ... designed and manufactured primarily for use in connection with gambling."

Electronic Freedom Foundation [eff.org]



 1:53 pm on Jan 21, 2009 (gmt 0)

It appears the court ruled on the very narrow ground of the State's attorney and trial court over-reaching the language and authority of the State statute.

It's not uncommon for appellate courts to avoid deciding more complex, controversial or hotly contested issues by ruling based upon an "easy issue". In this case, once the court determined the State's statute did not authorize the seizure, it wisely choose to keep a lid on the can of constitutional worms dropped into its lap by the trial court.

For those who are thinking "This isn't about me. I don't do gambling sites." think again.

This is about a State's ability to grab control of an individual's domains due to an allegation that a website violates some State statute.

The move I would fear, if I were you, would be States employing their many "consumer protection" statutes to execute a similar assault on websites that offer reviews - where they don't disclose that some of the reviews are posted by paid staffers - or sites that don't plainly mark advertisements as ads according to State standards. There are so many flavors of consumer protection that you could be running afoul of the rules in 5 States right now and not know it. What happens when a consumer in that State reports your website?

This isn't over. Until the U.S. Supreme Court rules on certain issues this will not go away. Therefore I suggest you read the background material on this case and make notes about the arguments, the participants, etc.

[edited by: Webwork at 1:54 pm (utc) on Jan. 21, 2009]


 3:35 pm on Jan 21, 2009 (gmt 0)

Webwork - I agree with your sentiments, but it seems as if we are in the minority.

Witness what's happening with the CPSIA and the acceptance/apathy of many towards that legislation.



 6:28 pm on Jan 21, 2009 (gmt 0)

Personally I have no interest in gambling sites, but this case is one of those that intrigues me.

A court cop out on the more complex and controversial issues was not what I was looking for. Where you say it 'wisely' kept the lid on the can of worms, I would say that should have read 'unwisely'.

Personally I think that anything to do with domain registration in the top level tlds should be provided for under international law (similar to the UN's Law of The Seas).

However all the time there are great big loopholes in the systems that allow for the goverment of one nation to seize the assets of a entity regulated under a different jurisdiction then there is a serious threat to internet businesses whereever they are based.


 7:11 pm on Jan 21, 2009 (gmt 0)


Now if only they would tell me they aren't going to actually go through with making infinite extensions... the whole domain world would be a lot more sane... and by consequent, the internet.


 8:32 pm on Jan 21, 2009 (gmt 0)

This is about a State's ability to grab control of an individual's domains due to an allegation that a website violates some State statute.

Or the opposite...

This is about a State's inability to grab control of an individual's domains due to an allegation that a website violates some State statute.


 9:18 pm on Jan 21, 2009 (gmt 0)

Can you give a good reason why any state, or nation for that matter, should have the ability to grab a domain that violates its statutes?


 9:22 pm on Jan 21, 2009 (gmt 0)

Carguy, I think there's a false reassurance in that statement.

It's unfortunate that the only issue the court addressed was the plain language or intent of their State statute "as written". Had the statute been written such that the court could not say that the statute - on its face - did not apply then the outcome might have been different. At the very least the court would have then had to move onto other issues, such as the constitutionality of the statute, the statute's effect on interstate or international commerce, etc.

As things now stand all we know is that the State statute, as written, was deemed to not apply to the facts of the case.


 9:25 pm on Jan 21, 2009 (gmt 0)

Ian, you might want to research "forfeiture statute" for openers.

IF an entity or thing, such as a car, is used to transport illicit drugs, the State can seek the forfeiture of the car, seize it and sell it - keeping the proceeds IF it's determined that the party in question was in fact guilty.

So, forfeiture laws would be a starting point to answer the question "Can a State or nation seize property?". The answer is a definite "yes".


 10:07 pm on Jan 21, 2009 (gmt 0)

Webwork I totally agree that a state or nation can, and should under certain circumstances, seize property, my statement was leading into the serious issue that is at stake here.

The interesting point in this seizure of property is that global tld domain names were seized. In some of the cases the names were registered by organisations not under the jurisdiction of the state involved.

This brings into play the issue of where ICANN is incorporated. If it is in the US - then technically the US government (and probably the state government of the state in which ICANN is incorporated) could legitemately seize any global tld domain that it deemed to be breaking its laws, whereas no other government globally has the same power - a very iniquitous situation which needs to be dealt with.

Alternatively you argue that the registration of a name lies with the ICANN accredited registrars, in which case the domain could be seized by the government of the jurisdiction in which the registrar is incorporated. (And in this case if the registrar was incorporated in Kentucky then the seizure could have been correct under the law.)

Thirdly you could argue that the registration lies with the registrant and that the jurisdiction of the registrant should be the only one having a legitimate right to seize the domain.

--Just as an aside if you really want to go into detail a state/nation could technically have the right to seize any traffic to or from a website that breaks their statutes no matter where that website was hosted or where the domain was registered. (Also they could potentially argue that they could seize any of the infrastructure used to carry that traffic as aiding and abetting a criminal act - just think of the chaos that could cause.)


 11:51 pm on Jan 21, 2009 (gmt 0)

seems like an interstate commerce issue. >> federal


 2:04 am on Jan 22, 2009 (gmt 0)

Off to the State Supreme Court. However, assuming the state's highest court rules the same, rather than ending litigation, the ruling sets up more litigation. The phrase the general assembly has not seen fit to amend [the statute] invites the legislature to rewrite the law to attempt to do what the current statute does not.

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