The Electronic Frontier Foundation (EFF), the Center for Democracy and Technology (CDT), and the American Civil Liberties Union of Kentucky (ACLU of Kentucky) on Friday urged the Kentucky Supreme Court to uphold an appeals court ruling that blocked state officials from ordering out-of-state registrars to turn over control of over 100 overseas domain names accused of violating state gambling laws.The Internet Commerce Association also joined this Friend-of-the-Court brief filed with the Kentucky Supreme Court.In addition to urging the Supreme Court to uphold the lower court’s reading of Kentucky law, the brief also urges the court to recognize other legal principles that would block an attempted seizure even Kentucky amended its law to explicitly declare domain names to fit within the definition of gambling devices. Those principles are:
- 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.
- Such state action is pre-empted by the Commerce Clause of the Constitution, which prohibits state regulation of interstate and foreign commerce.
- Such state action conflicts with and is pre-empted by the Federal Communications Decency Act, which immunizes providers of interactive computer services from the threat of such state action.
- 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).
- 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.
Upon filing of the brief, ICA President Jeremiah Johnston stated, “The ICA is pleased to be in such distinguished company on this brief. ICA has been involved in this case since Kentucky began its unlawful domain name seizures. 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. The ICA will continue to speak out and act in cases where the fundamental rights of domain name registrants are violated.”The case began in September when the commonwealth of Kentucky convinced a state court judge to order the seizure of 141 domain names, claiming that the names were “gambling devices” banned under Kentucky law. A Kentucky appeals court later overturned the ruling, but state officials appealed the order. In a friend-of-the-court brief filed with the Kentucky Supreme Court in support of the appeals court ruling, EFF, CDT, and the ACLU of Kentucky argue that the commonwealth’s attempt to regulate overseas websites is fatally flawed and, if successful, would violate the First Amendment, the Commerce Clause, and the Due Process Clause.”No state can order a domain name registrar over which it does not have jurisdiction to do anything. The commonwealth simply hasn’t satisfied its burden here,” said EFF Senior Staff Attorney Matt Zimmerman. “Without these important protections, no website would be safe from arbitrary decisions by foreign courts to silence online content that they don’t like.””Under Kentucky’s legal theory, any government in the world would be able to seize any website domain name if the site has content that the government does not like,” said John Morris, general counsel for CDT. “Such a theory, if upheld, would be devastating to free expression around the world.”EFF, CDT, and the ACLU of Kentucky were joined on the brief by the Media Access Project (MAP), the United States Internet Industry Association (USIIA), the Internet Commerce Coalition (ICC), and the Internet Commerce Association (ICA) — all leading public interest and industry trade groups.For the full amicus brief:
www.eff.org/files/filenode/ky_v_domainnames/KYSupremeCouramicusbrief.pdfFor more on this case:
www.eff.org/cases/commonwealth-kentucky-v-141-internet-domain-names
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