November 15, 2008, 3:08 PM — Three civil liberties groups have filed a petition asking a Kentucky court to reverse a judge's ruling that could lead to the seizure of 141 domain names related to gambling Web sites.
The Center for Democracy and Technology, the Electronic Frontier Foundation and the American Civil Liberties Union of Kentucky filed a petition Thursday with the Kentucky Court of Appeals, asking the court to overturn rulings made on Sept. 18 and Oct. 16 by Franklin Circuit Judge Thomas Wingate. Wingate ruled that the domain names are illegal "gambling devices" under Kentucky law, and he gave the gambling Web sites until Monday to come up with ways to block access by Kentucky residents or face forfeiture of those domain names to the state.
Wingate's ruling would force registrars to turn over the domain names of sites such as Pokerstars.com, Fulltiltpoker.com, Sportsbook.com and Goldenpalace.com.
The three civil liberties groups argued that Wingate's order raises serious free-speech concerns and violates the Commerce Clause of the U.S. Constitution, which says the U.S. Congress has the power to regulate commerce between U.S. states. The judge also does not have the jurisdiction to force domain name registrars to turn over the domain names, and the decision to target domain names is an odd way to shut down Web sites, the three groups wrote in their brief.
Domain names are simply addresses pointing Web users to the proper Web sites, lawyers for the groups wrote.
"If allowed to stand, the court's flawed order would needlessly create uncertainty about the basic rules governing the operation of the Internet as well as the authority of courts both inside and outside of the United States to affect behavior in other jurisdictions," the groups wrote. "Moreover, if carried to its logical conclusion, the trial court's order could well impose literally billions of dollars of additional costs on individuals and businesses throughout the world that have no significant contacts with Kentucky."
A spokeswoman for the Kentucky Justice and Public Safety Cabinet, which brought the cases against the Web site operators, didn't immediately return a phone call seeking comment on the new filing.
Wingate, in his 43-page ruling, said state investigators spent 500 hours surfing gambling Web sites and engaging in online gambling, which is illegal in Kentucky. His court has full jurisdiction to order the forfeiture of the domain names; Kentucky law allows for the seizure of illegal gaming devices, he wrote.
"We note that opposing groups and lawyers argue any judicial interference of the Internet will create havoc," the judge wrote. "This doomsday argument does not ruffle the court. The Internet, with all its benefits and advantages to modern day and life, is still not above the law."
Domain names are gambling devices as defined in Kentucky law, he added. The definition includes any machines or mechanical devices designed or manufactured primarily for use in gambling, he wrote. Domain names are "virtual keys for entering and creating virtual casinos," he wrote.
Software that can block Internet users on a geographic basis exists, Wingate suggested.
The three civil liberties groups disagreed, saying that geographic blocking software is inexact. One vendor said it could pinpoint some Web users' locations to within a 20- or 30-mile radius, meaning the blocking technology would be ineffective on Kentucky's borders, the groups wrote. In addition, some Internet service providers run traffic through central servers, making geolocation impossible, the groups said. Many Internet users also use proxy services as well, they wrote.
Geolocation services could cost a Web site as much as US$500,000 per year, the groups added. "The location services that the trial court asserts can be used are not built into the Internet or available to all Web sites," the groups said. "On the contrary, they are very expensive."
