Kentucky officials must return 141 gambling domain names they seized last year in a bid to block internet betting within state borders, an appeals court panel ordered on Tuesday.
The 2-1 decision by Kentucky's Court of Appeals reverses a lower-court ruling giving state officials the authority to seize some of the world's most popular gambling sites, the vast majority of which were located half a world away.
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.
Representatives from Kentucky Governor Steve Beshear's office didn't return calls requesting comment.
The seizure was commenced by Michael Brown, Kentucky's Justice and Public Safety secretary, who filed a lawsuit under seal in August. At a secret hearing that was closed to the defendants, Wingate in September issued an order directing registrars of absolutepoker.com, ultimatebet.com, and 139 other domain names to transfer ownership to Kentucky officials.
Shortly after the order was issued, whois records for many of the domains showed they were the property of Kentucky. For reasons that still are not clear, the handful of addresses we've checked since then appeared to have reverted back to their rightful owner. It's not clear who made the changes or why they were made.
The reversal is a victory for civil-liberties advocates who argued that the laws of an individual state shouldn't trump the rights of others to access sites that are perfectly legal elsewhere. In friend-of-the-court briefs filed in November, the Electronic Frontier Foundation, the Center for Democracy and Technology, and the American Civil Liberties Union of Kentucky argued the decision would pave the way for Kentucky to take control of any domain name if it pointed to sites that were deemed illegal in that state.
And it's not too much of a stretch to envision other states with strong opinions, say Utah, or even countries, perhaps China or North Korea, to similarly commandeer entire sites they deem to violate their laws.
It's always breath-taking when a court with little understanding of the internet makes a decision that proves to the rest of the world just how out-of-step they are with today's changing world. A federal judge in San Francisco did something similar last year, when he ordered Wikileaks to be shut down. Fortunately, the errors of these decisions tend to become so obvious over time that they eventually have to be overturned. And that's a good thing. ®