The Internet Commerce Association today joined in a
Friend-of-the-Court brief filed with the Kentucky Supreme Court urging
it to uphold the decision of the Court of Appeals that domain names are
not “gambling devices” subject to seizure under Kentucky law. Other
organizations signing this brief were the Center for Democracy and
Technology (CDT), Electronic Frontier Foundation (EFF) and the American
Civil Liberties Union of Kentucky (ACLU-KY). The brief responds to an
appeal filed by the Commonwealth of Kentucky after it lost at the Court
of Appeals level. Kentucky’s 2008 seizure of gambling site domains sent
shock waves through the domain name investment and development
community because, if permitted by the courts, it would have
established an extremely dangerous precedent by which any government
entity could claim jurisdiction over a domain name simply because its
website could be viewed from within its borders, and then attempt to
seize the domain name without advance notice or due process.
In addition to urging the Supreme Court to uphold the lower court’s
reading of Kentucky law, the brief also urges the court to recognize
other legal principles that would block an attempted seizure even
Kentucky amended its law to explicitly declare domain names to fit
within the definition of gambling devices. Those principles are:
1. Such a seizure would violate the Constitution’s First
Amendment right of free speech, constituting impermissible prior
restraint of both domain owners and Internet users.
2. Such state action is preempted by the Commerce Clause of the
Constitution, which prohibits state regulation of interstate and
foreign commerce.
3. Such state action conflicts with and is preempted by the
Federal Communications Decency Act, which immunizes providers of
interactive computer services from the threat of such state action.
4. Such seizure violates the due process rights of domain name
registrars because the state cannot exercise personal jurisdiction over
them and such personal jurisdiction is a prerequisite for effecting any
seizure order. Further, Kentucky courts are not forums “of competent
jurisdiction” under ICANN’s Uniform Dispute Resolution Policy (UDRP).
5. Such seizure imposes unrealistic and potentially devastating
burdens on domain name owners to implement geographic filtering of
their content so that the associated website cannot be viewed in
jurisdictions where some aspect of it may be regarded as unlawful.
Upon filing of the brief, ICA President Jeremiah Johnston stated,
“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. Had that action been upheld it would have set a
devastating precedent whereby any government around the world could
have moved to seize a domain name simply because the associated website
contained some information that offended its laws, without due process
or proper jurisdiction. 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.”