Kentucky Loses in Domain Name Case

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I've written before about Kentucky's attempt to seize a bunch of domain names from gambling sites. They prevailed at the trial level and were able to take control of the names, but just lost at the appellate level. From the Register article:
The lower-court ruling rested on Franklin County Circuit Judge Thomas Wingate's highly specious finding that internet casino domain names constitute "gambling devices" that are subject to the state's anti-gambling statutes. Tuesday's decision disabused Wingate of that notion in no uncertain terms.

"Suffice it to say that given the exhaustive argument both in brief and oral form as to the nature of an internet domain name, it stretches credulity to conclude that a series of numbers, or internet address, can be said to constitute a machine or any mechanical or other device ... designed and manufactured primarily for use in connection with gambling," they stated. "We are thus convinced that the trial court clearly erred in concluding that the domain names can be construed to be gambling devices subject to forfeiture under" Kentucky law.

(Decision here. BTW, can you believe that in 2008 they're still distributing documents as scans turned into PDFs? Clearly this was sourced on a computer, so what's the problem?)

While I agree that it doesn't make a lot of sense to view domain names as a gambling "device", I'm not sure that this is quite as broad a ruling as I would have liked. As far as I can tell, this is just a ruling that this particular Kentucky law is inapplicable, but it's not clear what would stop Kentucky from passing a law explicitly giving them the right to seize domain names used in gambling, which would put us right back where we started. The problem here isn't so much the overreach of the particular Kentucky law, but rather with the potential for a situation where every political unit has joint universal jurisdiction over DNS entries just because the owners of the domain names exchange traffic with people in that political unit. It's understandable that the court didn't want to address that when it could find on narrower grounds, but presumably we'll eventually run into a case where the applicability of the local laws is clearer and we'll have to take the major jurisdictional issue head-on.

Thanks to Hovav Shacham and Danny McPherson for pointing me to this ruling.

3 Comments

No, the problem is not that Kentucky claims jurisdiction, but that it was able to make it stick, just like the State Department was able to hijack a British tour operator's Cuban tourism info sites. The British government does not have this power because the servers are in the US and their judgments unenforceable.

This is the reason why other countries chafe at the fact the US still has effective control over the DNS. Short of providing extraterritoriality to the DNS root servers (host them at the UN building in New York?), I don't see how future abuses by US Federal or State governments could be thwarted.

The State has appealed to the KY Supreme Court, so, you met yet get your wish for a different ruling. Be careful what you ask for in things legal yo.

Clearly, these sorts of companies are going to want to use off-shore registries. If you've registered yourself with a .co.uk address, then any U.S. court is going to have a hard time issuing a judgment that has any force.

Nonetheless, the idea that a Kentucky court can order your DNS records changed is about as meaningful as ordering your phone number to go somewhere else. Page the lawyers, but that sounds like it's stretching beyond the reach of what a state court can do.

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