by Hillary LaClair, Senior Editor
The Electronic Frontier Foundation, the Center for Democracy and Technology and the American Civil Liberties Union, all organizations dedicated to internet freedom, or net neutrality, are advocating for the appeal of the Kentucky ruling. These groups have urged the Kentucky Court of Appeals to dismiss the authorization to seize 141 internet gambling domains, should the website owners fail to block Kentucky residents.
The net neutrality activists have filed an amicus brief with the Court of Appeals, stating that the ruling violates the First Amendment, the Commerce Claus and the Due Process Clause of the Constitution, which prohibit state courts from interfering with internet domains registered and operated outside of Kentucky. A spokesperson argued that the seizure and lower court’s jurisdiction over international domain names challenges free speech across the internet.
“The court’s theory – that a state court can order the seizure of internet domain names regardless of where the site was registered – is not only wrong but dangerous,” opined Electronic Frontier Foundation Staff Attorney Matt Zimmerman. “If the mere ability to access a website gives every court on the planet the authority to seize a domain name if a site’s content is in some way inconsistent with local law, the laws of the world’s most repressive regimes will effectively control cyberspace.”
In his ruling, Judge Wingate maintained that the domains would be confiscated if owners refused to implement “geographical blocks” to ban Kentucky residents from accessing the online casinos. According to Zimmerman, no such filters exist which are effective, and the least expensive of software to enforce the ban would cost thousands of dollars. Aside from which, the enforcement of such a ruling would “unconstitutionally burden First Amendment rights.”
“If the Kentucky order is upheld, no speech that conflicts with any law, anywhere in the world, would be safe from censorship,” added John Morris, general counsel for the Center for Democracy and Technology. “Just as Kentucky is trying to take down sites located around the world, any government seeking to stifle free expression could try to interfere with lawful speech hosted in the United States.”
“A key free speech principle that has emerged from Internet litigation is this: Governments may not prohibit all access to websites as a remedy for unlawful behavior,” said David Friedman, ACLU of Kentucky General Counsel.
The amicus brief filed explains that, “Any order purporting to transfer domain name registrants to the Commonwealth of Kentucky raises serious First Amendment concerns because it would necessarily impede access to material that is legal not only in Kentucky but throughout the country and the world. Moreover, it would chill speech of all types, not simply the speech directly at issue in this case.
“As conceived by Judge Wingate, domain names would be subject to seizure – and therefore can be disabled so that they will no longer correctly correlate to their respective intended sites’ IP address – if the site enables behavior that is arguably illegal in Kentucky but may be legal elsewhere. Conversely, the court noted that for any of the domain names at issue ‘which are providing information only, the Seizure Order must be appropriately rescinded’ (but even then the court placed the burden on the domain name owners to prove these facts at a forfeiture hearing.) Such a ruling turns First Amendment protections on their head. Third-parties who may wish to access such (legal) information, including amici and their constituents, would be prohibited from doing so if the court’s Order is not rescinded.”