EFF the Center for Democracy and Technology (CDT) and the American Civil Liberties Union (ACLU) urged a Kentucky Court of Appeals in November of 2008 to vacate a lower court's order authorizing the seizure of more than 100 Internet domain names associated with websites operating around the globe. The seizure and the lower court's exercise of jurisdiction over global domain names threatens free speech across the Internet.
In a move to combat what it viewed as illegal online gambling the Commonwealth of Kentucky convinced a state court to "seize" 141 domain names because the names allegedly constituted "gambling devices" that are banned under Kentucky law -- even though the sites were owned and operated by individuals outside of the state and in many cases even outside of the country. Unless the sites screened out Kentucky users the court held the seizure order was proper.
In its amicus brief filed with the Court of Appeals in support of a writ vacating the judge's order EFF CDT and the ACLU argue that the First Amendment the Commerce Clause and the Due Process Clause of the Constitution prohibit state courts from interfering with Internet domain names that were registered and maintained outside the state.
On January 20 2009 the Kentucky Court of Appeals granted the consolidated petitions for writs of mandamus overturning the trial court's order seizure order holding that Kentucky's "gambling device" statute did not cover domain names. On January 21 2009 the Commonwealth of Kentucky filed a notice of appeal to the Kentucky Supreme Court.
On April 2 2009 the Commonwealth filed its appellant brief with the Kentucky Supreme Court. On April 17 2009 EFF CDT and the ACLU filed a new amicus brief in opposition to the Commonwealth's Supreme Court appeal. Also on April 17 Network Solutions and eBAY filed their own amicus briefs in opposition to the Commonwealth's Supreme Court appeal. On May 27 2009 Appellee Interactive Mediate Entertainment & Gaming Association Inc. (IMEGA) filed their appellate brief. On June 18 2009 the Commonwealth submitted its reply brief which was formally filed by the Court on July 7 2009. Oral argument before the Kentucky Supreme Court took place on October 22 2009.
Update: On March 18 2010 the Kentucky Supreme Court reversed the Court of Appeals' order granting the consolidated petitions for writs of mandamus holding that the Interactive Media Entertainment & Gaming Association (iMEGA) and the Interactive Gaming Council (IGC) lacked standing to challenge the circuit court's seizure order. The Supreme Court explicitly noted that it was not ruling on the merits of the challenges and that an identified appellant -- i.e. an individual or entity that owns an affected domain name -- could return to the Court of Appeals and renew a challenge.
On March 26 2010 following a renewed writ filing by the registrant of a domain name implicated by the trial court's seizure order (truepoker.com) the Kentucky Court of Appeals issued an on order recommending transfer of the writ petition to the Kentucky Supreme Court for a ruling on the merits.
Update II: On September 24 2010 the Kentucky Supreme Court denied the writ petition holding that "Because the trial court has not had the opportunity to address Petitioners' claims both as to standing and jurisdiction they cannot establish standing to pursue the writ they seek." The Supreme Court indicated that it would not rule on the merits of such a petition until the standing and jurisdictional questions are resolved before the lower courts.
March 18, 2010
July 7, 2009
June 18, 2009
May 27, 2009
April 17, 2009
Amicus Brief of EFF, CDT, and the ACLU of Kentucky et. al. In Opposition to the Commonwealth's Supreme Court Appeal [PDF]
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