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The Kentucky Domain Name Issue Will Be a Major Story in 2010...By Hartley Henderson

One of the strangest gambling stories to occur in recent years was the state of Kentucky's attempt to seize domain names of gambling sites. In 2008 Governor Steve Bashear gave an order to seize 141 domain names of gambling sites, stating that they were gambling devices and violated a state law. To almost everyone's shock, District Court judge Thomas Wingate agreed the names were gambling devices and could be seized, but the illogical decision was immediately appealed by many groups, including iMEGA, the Poker Player's Alliance, the Interactive Gambling Council (IGC), the American Civil Liberties Union and lawyers representing some of the sites. The Court of Appeals halted the seizure order and lawyers for the state must have realized that the decision wouldn't stand because they offered to give back the names to the sites if the site owners paid them off handsomely and agreed to block Kentucky residents from accessing the websites. Not surprisingly that request was ignored, and shortly thereafter the Court of Appeals overturned Judge Wingate's decision.

At that point it appeared that the motion was done with, but earlier this year the Kentucky Supreme Court agreed to hear the case. In October several groups presented arguments to six state Supreme Court judges, including lawyers for sports groups and the state of Kentucky which argued that iMEGA and the IGC should not be present since they did not have standing, as they were not owners of any of the websites set to be seized. The state lawyers also vehemently suggested that URLs were gambling devices since they are the "entry points" to the casinos and sports betting sites. Without their URLs, the state's lawyers argued, the businesses are meaningless. The IGC lawyer argued that not only did all groups have standing, but the state's attempt to seize the domain names violated the 14th amendment to the constitution since most of the domain names were registered outside the United States and the companies to which the domain names belonged were operating legally as per the laws of the country in which the sites conduct business.

Nothing was really heard during the rest of October or November, but earlier this month the State's attorneys announced that they wanted to add names of companies and individuals to their lawsuit. A press release on iMEGA's website showed the following statement by the Kentucky lawyers:

"In the course of the litigation and the Commonwealth's continuing investigation, the Commonwealth has learned the identity of certain entities and individuals involved in internet gambling operations, some of whom are U.S. citizens," read the motion from Kentucky's lawyers. "The Commonwealth asks for leave to amend its Complaint to add causes of action against these individuals and entities in personam."

The motion called for a hearing with Thomas Wingate on January 20th, 2010 to decide whether names could be added. iMEGA consequently asked to hear the names of the individuals and companies that are to be added to the complaint, but lawyers for the state said they would not reveal any of the names and continued to suggest that as far as they were concerned none of the appellants, including iMEGA and the IGC, had standing so they had no reason to tell them anything. The lawyers suggested this in spite of the fact that the Court of Appeals did grant iMEGA legal standing, previously.

Almost every lawyer I spoke to that heard of the case stated it should never have gotten off the ground. However, the state district cour,t in an attempt to make itself seem important, decided to render a decision which it had no power to do.

"To suggest a URL is a gambling device is idiotic," one lawyer said to me. "Gambling devices are slot machines, black jack tables, sportsbooks, roulette tables and so forth. A gambling device is a physical entity that permits someone to place wagers. A URL is simply a name attached to an IP address that directs people to a website. The Court of Appeals got it correct and it's amazing that this issue is still being heard."

Others were more concerned about the ramifications if this suit was ever successful. "If this was ever successfully tried, it would open a huge Pandora's box," a civil rights representative suggested. "As you probably know it's illegal for Americans to travel to Cuba without special permission, but it's not illegal for Canadians to travel there. Many American citizens get around the law by booking flights from Canada via Canadian travel agents, often by way of travel websites. If caught, American citizens could be reprimanded, but few are. If the Kentucky case is won and sets a precedent, then what is preventing the American government from seizing every Canadian travel agency URL because a few Americans choose to use those sites to book flights to Cuba? In that example the government should be trying to charge American citizens for breaking U.S. law, but doing so can be tricky. Seizing foreign websites would be an easy way to stop the practice by punishing a foreign company, even though the company is operating legally in the country it is physically located [in] and is doing nothing wrong. Of course it could increase tension between the countries, but our government has never been concerned with that."

That comment, along with the attempts by Kentucky's lawyers to dismiss the Court of Appeals ruling that iMEGA has standing, reminds me of the USTR's actions in regards to the WTO. The WTO ruled in favor of Antigua and ordered the U.S. to allow gambling services to the country, but the USTR refused to accept the decision of the WTO and also refused to ever talk to the Antiguan government or its lawyers about the issue. Rather than opening itself to logical discussion, the USTR simply deemed the WTO decision as faulty and said it would not abide by it, nor would it ever meet with Antiguan officials to discuss it. Of course it did decide to rewrite its commitments, but even that was done unilaterally and without any feedback or discussion with other affected countries. It seems that to many in the U.S. government its better to ignore decisions and pretend they were never made than to admit they may be wrong.

As far as the Kentucky domain case, the logical conclusion is that the Kentucky Supreme Court will agree with the Court of Appeals and rule that the motion is inane and will summarily dismiss it. But if the judges do find for the Commonwealth, it is almost a certainty it will be appealed to the U.S. Federal Supreme Court for a final ruling. Either way the high courts need to determine once and for all how much power the U.S. government has over foreign entities, and also how much power it has over the personal decisions of American citizens. This case will surely be closely watched in 2010 by both gambling groups and civil rights groups.

Hartley Henderson

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