Trade Group Petitions Kentucky Supreme Court Over Domain Seizures

Stephen Yagielowicz
LOS ANGELES — The Internet Commerce Association (ICA) has announced its opposition to efforts by the State of Kentucky to seize the domain names of out-of-state gaming websites.

The ICA extended its opposition by joining a Friend-of-the-Court brief which was filed with the Kentucky Supreme Court, asking that the court uphold the prior decision of the Court of Appeals, which held that domain names are not "gambling devices" — and thus not subject to being seized under state law.

"The ICA is pleased to be in such distinguished company on this brief," ICA President Jeremiah Johnston said of the other organizations which are a party to the petition — including the Center for Democracy and Technology, the Electronic Frontier Foundation and the American Civil Liberties Union of Kentucky.

According to the group, the Internet Commerce Association is "comprised of members who own, develop and operate domain names for the purposes of online commerce," and which serves as "a leading voice for domain owners to ensure their rights are not affected by the politics of Washington, the policies of ICANN, or wherever threats to [its] membership exist."

In a news release, the ICA cited concern on the part of the domain name investment and development community over the Kentucky maneuvering, stating that if the move was sanctioned 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."

According to the ICA, the brief also urges the court to recognize other legal principles that would block an attempted seizure, including:

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.

"ICA has been involved in this case since Kentucky began its unlawful domain name seizures," Johnston added. "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," Johnston concluded. "The ICA will continue to speak out and act in cases where the fundamental rights of domain name registrants are violated."