Kentucky Judge Upholds State's Gambling-Domain Grab 272
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?
Not entirely accurate (Score:5, Informative)
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.
It's too late (Score:2, Informative)
The initial court orders effectively prevent the name from being released from the previous registrar.
The operations in question can, however, create new domains using offshore registrars, but changing a domain name is not a cheap operation.
Against international WTO agreements (Score:5, Informative)
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 [cnet.com]
Re:differant registrar? (Score:1, Informative)
It's only servers that are doing business in Kentucky that are at risk. If a server was selling drugs, child porn, or violating other vice laws, I'd expect the same reaction. It's not like the owners of the server thought it was legal or it's some gray area. Gambling is heavily regulated in the US. You can't just use the phone or the internet to get around the law.
Re:Ground troops and the state's ability to enforc (Score:5, Informative)
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 .
Full Faith and Credit and the Commerce Clause (Score:3, Informative)
By seizing the domain name, the State now owns or controls the domain name. It owns or controls it in the home state, and by virtue of the full faith and credit clause of the U.S. Constitution, it owns or controls it in all the states. This is part one--the acquisition of the right.
Part two--the enforcement of the right--will be very interesting. Destruction of the domain's ability to do business in the home State appears to be a trivial problem. Destruction of the ability to do business in each of the other states is a tedious process, but thanks to the full faith and credit clause, a doable thing.
The dormant Commerce Clause, however, looms over all of this as the big Green Monster looms over Fenway. In short, the several states can't go writing laws that straightjacket interstate commerce. But addressing that question is probably too much trouble for to take for the two or three people that will read this post.
Re:Not entirely accurate (Score:4, Informative)
(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).
Re:differant registrar? (Score:4, Informative)
That's fine in theory, but remember that ICANN, who controls the root servers, is a US corporation based in California.
Re:differant registrar? (Score:3, Informative)
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.
Re:Ground troops and the state's ability to enforc (Score:3, Informative)
"A weak government lacks the power to take your stuff or your liberty." Really?? Patriot Act, Property confiscation laws...."
He did say 'the original intent' most true conservatives (not neo-conservatives) think thinks like the Patriot act are sham.
Neo-conservatives want to project US power and that cant be done with a weak central government.
American Liberals want the federal government to provide health care, education, cradle to grave hand holding and you cant do that with a weak central government
Either way We the People are getting the short end of the stick..
Re:Somebody needs to stop this judge (Score:3, Informative)
I think Kentucky's chief exports are bad laws and regulation.
Don't forget the good old whiskey the judge was drinking.
Re:differant registrar? (Score:3, Informative)
But the issue here is whether kentucky has the right to stop them doing business in the rest of the world.
Re:Not entirely accurate (Score:2, Informative)
Re:Ground troops and the state's ability to enforc (Score:3, Informative)
Treaties are approved by the Senate, not the states, and yes, there is a treaty (actually a series of treaties and annexes, I think) involved in joining the WTO. The president approves, but the Senate must consent.
Treaties occupy a spot between the Constitution and statutory law. Law must conform to adopted treaties, but treaty language can be overridden by the Constitution.