Briefs Filed in Kentucky Domains Case (Update)

October 6, 2008 (InfoPowa News) — Going into the weekend, there has been no slackening in the pressure building up for Tuesday's Franklin Circuit Court hearing on the legality of the attempt by the state of Kentucky to confiscate the domain names of some 141 international online gambling companies.
 
Associated Press is closely monitoring the issue, and reports that Lexington attorney William C. Hurt Jr. has filed a legal brief claiming that the Kentucky Justice and Public Safety Cabinet has a right to seize domain names of online casinos that are available to residents in the state. He contends that these domains are 'illegal gambling devices' and therefore fall under Kentucky laws prohibiting same.
 
The definition of the word "device' is likely to be at the center of the debate Tuesday, as defense attorneys contend that a device "is a piece of equipment or a mechanism designed to serve a special purpose or perform a special function," and therefore is not applicable to a domain name.
 
Hurt is just one of what is believed to be a number of outsourced lawyers working on a "no win no pay" deal with the Kentucky state governor in the case, which has caught the attention of freedom of speech and protection of the Internet advocates as well as industry and registrar firms impacted by the case.
 
Kentucky state initiated the crisis when it filed a lawsuit asking Franklin County Circuit Judge Thomas Wingate to give the state control of 141 online gambling websites. The Judge allowed the temporary seizure of the domains pending a court ruling, and after a continuance granted last week for briefs to be filed, the case will be heard Tuesday October 7.
 
One of several legal representatives opposing the Kentucky action is Louisville attorney R. Kenyon Meyer, who argued in a brief filed Friday on behalf of the Interactive Media Entertainment and Gaming Association that domain names aren't devices. He contends that seizing domain names would be unconstitutional.
 
Meanwhile, arrangements have been made for parties opposing the Kentucky move to gather and discuss the issues today at 1 pm at the Capital Plaza Hotel in Frankfort, Kentucky. The gathering is hosted and organized by the Bluegrass Institute, which works for limited government, economic prosperity, and personal responsibilty as founding father values. The group conducts research on policy issues connected with its ideals, and a spokesman said that it considers the Kentucky action to be a serious censorship threat that could have consequences far beyond Internet gambling.
 
"This is certainly moving in the wrong direction," he said. "This is unsound public policy. The Governor is trying to curb Internet gambling, but I don't think he knows that the Kentucky Lottery allows second chance tickets to be played online. How hypocritical and inconsistent is that? In total, this is going to set a really bad precedent for other states and even other counties."
 
The Poker Players Alliance, which has been very active in opposing Kentucky's intentions, revealed that Monday's conference would include an examination of questions such as the state's jurisdiction or lack thereof in the domain seizures; the national and international wider consquences to Internet freedom and technological innovation of such an Internet-related seizure order; and whether the accepted understanding of the word "device" covers domain names as is claimed by Kentucky lawyers.
 
Barry Kaufkins of the BG Daily News has attacked Governor Beshear's initiative, claiming that the Governor supported other forms of gambling "…as long as he's got his hand in the pot. Beshear claims Kentuckians are wagering millions online, millions that could be generating revenue for the state. Does he really think that online poker players are going to transfer those "millions" from the poker table to the lottery ticket?
 
"Contrary to the governor's claims, online poker is not illegal under Kentucky state law, and Internet poker is fully regulated. Nor is it true that online poker is untaxed — poker income is taxed at the state and federal levels. The industry itself is not taxed because Kentucky chose to not levy a tax.
 
"The industry is not regulated by the Commonwealth only because Kentucky has chosen not to license and regulate poker sites. Were Kentucky to do so, I believe the poker sites would jump at the opportunity, and I fully support legislation to implement this.
 
"I am outraged that our governor feels he has the right to censor my online activities, to invade my privacy by regulating what I do in the sanctity of my own home. This kind of mommy government censorship is the kind of public policy I would expect in China, not in the United States."