Kentucky Judge Upholds State's Gambling-Domain Grab

JohnHegarty writes "A Kentucky judge has upheld that state's seizure of some of the world's most popular online casino domain names, ruling they constitute a 'gambling device' that is subject to Kentucky's anti-gambling laws." Wasn't it surreal enough on the first round?

Comments

Not entirely accurate

[lrsach01]

Basically the judge didn't throw the case out. He is letting it proceed. It's not the wholesale grab of domain names some people want you to believe.

Re:Not entirely accurate

[Kadin2048]

(Indeed, seems to me - though IANAL - that if this nutcase theory of jurisdiction holds, any country hostile to free speech can seize domain names left and right. Germany can seize "HolocaustDeniers.org", Russian can seize "PutinSucks.com".)

Well, they can try, but I don't know how they actually would ... the reason Kentucky was able to do this is because (as I understand the mechanics of it) ICANN is incorporated in the U.S., and they served them with a court order.

ICANN probably should have just told them to get stuffed, but they didn't (probably because they didn't want to get dragged into it, or get fined for being in contempt). But it's because they're located in, and incorporated in, the U.S. that gives a penny-ante court in Kentucky any sort of leverage.

A court in Germany could try serving ICANN with papers ordering them to turn over HolocaustDeniers.com or whatever, but I don't see why ICANN would comply -- and, more importantly, I don't see what sort of leverage a court in Germany would have to force them to. They could probably do the same thing to the registrar that controls the ".de" TLD, which I assume is incorporated in Germany, but not if it was a gTLD (.com, .net, .org, &c.).

I'm also not sure that the court in Kentucky would have had as much success at grabbing the domains if they'd been registered under the country code of some other country. E.g., if the site had been "GreatGambling.co.de", and they had ordered ICANN to transfer it, ICANN might have been able to say to them with a straight face that it was impossible, and they'd have to talk to the registrar for .de, which would be some company in Germany. But they can't pass the buck and claim it's beyond their control when it's a gTLD, since they oversee them.

The bottom line to all of this is that people need to realize that all the gTLDs are not some sort of international zone. At the end of the day they are basically .us domains without the explicit ".us" at the end. If you're doing something that's considered shady, or might possibly be considered shady, by virtually any court in the U.S., you would be better off getting a domain in a ccTLD from a country that's more tolerant, rather than a gTLD domain. Anyone with a gTLD domain has it basically at the whim and mercy of any state court judge in the United States; depending on the subject matter or the purpose of the site, that might be an improvement over some other country (Chinese democracy, lambasting various monarchies), or it might be a huge liability (gambling, DRM breaking, certain types of porn).

Against international WTO agreements

[RiffRafff]

If this goes far enough, there will be threats of action regarding a blatant disregard of international commerce treaties. Seems to me that point came up before when the US tried to shutdown off-shore gambling.

Ah, found it:

http://news.cnet.com/WTO-slams-U.S.-Net-gambling-ban/2100-1030_3-5658636.html

Re:Ground troops and the state's ability to enforc

[HungryHobo]

But that's not what they're doing.
They're not rerouting traffic in the state.
They just took the domain names.
As in they can send joe blogs in japan to their own servers when he looks up one of those sites.

Imagine that you ran a mail order buisness, your "domain name" is your postal address.
You live and run your buisness from Iceland say or China.
A judge in an american state decides that you are competing with local buisnesses and signs an order taking your postal address and from then on any post sent from anywhere be it America, Europe or elsewhere will not be sent to you but rather to the judge.

The basis of course being that your postal address is an item required to do illegal buisness with people in an american state.

Clear enough for everyone?

The best solution would be for any registrars outside this juristiction to simply list the correct ownership information for the domains .

Re:differant registrar?

[NormalVisual]

So the trick is to host your servers and register your domain in a country where a court order from Kentucky is going to be recycled as toilet paper.

That's fine in theory, but remember that ICANN, who controls the root servers, is a US corporation based in California.

Re:differant registrar?

[Kadin2048]

That's basically the case. Although I don't know about the Internet at large, you could at least shut down ICANN with a few well-placed court orders from any U.S. state you wanted to.

This is because -- as I understand it, anyway -- ICANN is incorporated in the United States, specifically in California. Court orders from other U.S. states are enforceable in California because of the Full Faith and Credit clause of the Constitution. So if a judge in some state (say Kentucky) orders ICANN to do something, despite ICANN being in California, there's a good chance ICANN is required to do it. At the very least they can't just blithely shrug it off, as they might do with an order from a court from another country.

There are a lot of checks and balances that are supposed to come into play -- state courts aren't supposed to rule on things that are outside of their jurisdiction, for one -- but those questions get into gray areas pretty quickly. If a site is accessible in a particular state, does that automatically make it subject to that state's laws? You and I (and most people who understand how the Internet works) would probably say no, but I'm not sure there's legal precedent on that. Many Internet users erroneously assume that a web site is subject only to the laws of wherever the server actually hosting it physically resides, and this is a pretty logical stance, but a lot of judges seem to lack this understanding. Increasingly there seems to be an attitude that if a user can access a site from a particular location, then it falls into that court of that location's jurisdiction, despite the servers being located thousands of miles away: that's the stance that the court in Kentucky seems to be taking.