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Kentucky vs. 141 Domain Names

Yes, that is a title of a real, current legal case and controversy.

(And, no, the links in this post are not spam… mostly gambling news sites seem to be reporting on this.)

The Governor of Kentucky, through his Justice and Public Safety Cabinet, has moved in court to have 141 gambling-related domain names transferred to the Kentucky state government, partially because other legal gambling operations in Kentucky, like horseracing, lose revenue to online gaming. Yes, you read that right: by allegedly violating KY law, the state can move to have property used in these unlawful acts transferred to the state. In this case, the “property” in question is the domain names themselves.

This case is definitely novel in the realm of cyberlaw, but also is a bit controversial for how it originally proceeded. At first, the state met with the judge in a unilateral hearing where the judge granted a seizure order directing the registrars of each domain name to transfer the domain name to the state of Kentucky (a few registrars transferred the domain names immediately upon receiving the order). The judge also then established a date for a forfeiture hearing (think of it as a last chance opportunity for affected parties to appear and dispute the seizure of their property). A phalanx of attorneys for various gambling outfits (presumably, see below) as well as industry and players associations showed up to this original hearing. The judge decided to accept briefing on the various issues presented; his order was due on Wednesday but was delayed until yesterday due to a computer glitch.

Judge Wingate’s order was handed down on Thursday. There’s so much interesting stuff in this case, perhaps it deserves a few more posts; I’d like to highlight a few things:

  • Identifying parties—For obvious reasons related to gambling being illegal in many parts of the United States, many of the 141 Domain Names defendants don’t want to be identified. However, to have standing—that is, to be able to present a legal argument as a direct party to a case—one needs to have an attorney and be identified as one of the named defendants (or anyone could make the case).
  • Domain names as property—Are domain names more like an address or phone number or are they more like a piece of physical property? Here the judge relies on a case from the 9th Circuit in California, Kremen v. Cohen 337 F.3d 1024 (9th Cir. 2003), where Justice Kozinski had to decide if a domain name was property that could be stolen under California law. That case established an “attributes test” for intangible property that includes 1) is there an interest capable of precise definition? 2) can it be excluded from possession or otherwise controlled? and 3) can the purported owner establish a legitimate claim to exclusivity? Applying this test (and some additional muddled reasoning), Judge Wingate found that domain names are indeed intangible property.
  • Devices and chance—The state maintains, and presented expert testimony to the effect, that domain names are a “device or transport device allowing Kentuckians to engage in internet gambling.” In my opinion, this is where Judge Wingate goes a bit off the deep end. The part of Kentucky law that defines a “gambling device” (KRS 528.010 (4)(a) and (b)) as a tangible device manufactured and designed specifically for gambling. Wingate compares domain names to “virtual keys” for “virtual casinos” and finds that reading the law literally is not appropriate here and, rather, Kentucky courts have to uphold the intent of the law. And how much virtual intent can we read into Kentucky law? I would further quibble with Wingate’s assertion that these particular domain names have been designed to attract players; most of the successful gambling sites in the list of 141 seem to have more branding value in their domain names rather than cachet due to clever word choice. Also, under KY law, games of chance are explicitly illegal while games of skill are not. The Poker Player’s Alliance, a group that represents players of poker and poker enthusiasts, argued in an amicus brief that the poker-related subset of the 141 Domain Names should not be subject to the forfeiture due to their not being illegal under KY law. Wingate seems on more solid ground with the chance element raised by the Poker Player’s Alliance. The part of KY law relevant here (KRS 528.010(3)) in that it defines chance as only one element of what constitutes “gambling” with risking something of value and the opportunity of winning something of value as the other elements.

What’s the upshot of all of this? To me, it’s pretty scary: A state government moved to order seizure of domain names that it found were illegal “devices” and a judge issued an order demanding the transfer of these domain names before any hearing or opportunity to protest. The state has so far successfully argued that domain names are property and devices used for illegal gambling within Kentucky and that the 141 Domain Names defendants must identify themselves to have standing to contest the seizure and forfeiture. The last shoe to drop is that Judge Wingate, as part of his order from yesterday, ordered the state to rescind any forfeiture for gambling sites that block Kentucky gamers using geographical blocking methods (the wording was, essentially: Defendants who install a “software or device [...] which has the capability to block and deny access to [the defendant’s] online gambling sites [...] from any users or consumers within the [...] Commonwealth [of Kentucky] and reasonably establishes to the [state] or this Court that such geographical blocks are operational, shall be relieved from the effects of the Seizure Order and from any further proceedings [in this action.]”).

What is to stop other local governments from mandating blacklisting of geographical user bases (despite the plain futility of this protection measure)? What’s to stop an authoritarian state from seizing the domain name of a dissident group? I don’t see a good solution.

Finally, the only general amicus brief submitted was from the Internet Commerce Association representing domain name registrars. Where is the public interest voices in this? Where are my friends from the Electronic Frontier Foundation?

This post has been reproduced here with kind permission from Freedom to Tinker

By Joseph Lorenzo Hall, Postdoctoral Research Associate

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Small correction Michael Collins  –  Oct 21, 2008 2:15 PM

Thank you for a posting this article. We need to see more mainstream opposition to this ruling. If the ruling stands, much more than gambling sites are put at risk.

Correction - Internet Commerce Association has a few members that own registrars, but we represent registrants, not registrars. ICA represents domain investors, developers and the direct search industry.

The Governor of Kentucky, through his Justice John Berryhill  –  Oct 28, 2008 4:15 PM

The Governor of Kentucky, through his Justice and Public Safety Cabinet

Significantly, the plaintiff is not the State of Kentucky represented by its attorney general.  Instead, the governor hired a private firm to pursue this matter on a fee basis which is presumably knowable to the citizens of the Bluegrass State.  The governor had run on a platform of increased in-state gambling.  Accordingly, as with other land-based gambling concerns, the gambling interests in Kentucky recognize the competition from online gambling, and this action is nothing other than pure political quid pro quo.

The state AG has expressly disavowed involvement in the matter, and requested at least one online commentator to correct an initial statement assuming the AG’s office was involved.  Such sensitivity suggests the AG is aiming for “distinction for the uninvolved” at the terminal phase of this pet project of the governor.

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