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A Turn for the Better in the Kentucky Domain Case


by Hillary LaClair, Senior Editor

               The Kentucky Court of Appeals granted a stay of the forfeiture order against 141 internet gambling websites until appellate judges hear oral arguments and rule on the matter. The decision follows an appeal made by the Interactive Media Entertainment and Gaming Association (iMEGA) and the Interactive Gaming Council (IGG) under the argument that the forfeiture is unconstitutional.

                A forfeiture hearing was scheduled for December 3rd for those domain owners who failed reasonably establish “to the satisfaction of the Kentucky’s Justice and Safety Cabinet or this Court that such geographical blocks [to Kentucky residents] are operational.”

                “We’re glad that the Appeals Court recognized the need to prevent the immediate forfeiture of those domain names,” said iMEGA chairman Joe Brennan, Jr. “The Commonwealth’s attorneys have tried from the very beginning to push this seizure action through at a breakneck pace, so that by the time any of the domain owners realized what was happening, they would have lost their rights to their domains.

                The hearing for iMEGA’s petition is scheduled for December 12th. iMEGA will present its case in front of the same three-judge appellate panel that granted the continuance. The panel will assess the ruling and make a decision as to whether the lower court lacked to jurisdiction to order to domain confiscation and whether Secretary Brown lacked the authority to initiate the seizure to begin with.

                Should the panel find that these groups were lacking jurisdiction, then the ruling will be overturned. However if appellate Court finds otherwise, there will then be a decision made as to whether the lower court wrongly applied Kentucky’s “gambling devices” law in ordering the seizures and whether these actions violate the Commerce Clause of the U.S. Constitution.

                A final hearing will take place in which the appellate panel has agreed to combine the petitions of iMEGA and the IGC against to forfeiture. IGC has made the argument that the domain names are not subject to Kentucky law as they are not located in Kentucky.

                The Poker Players Alliance filed an additional amicus brief, focusing on the issue that has not uet been addressed by the courts: that poker is more a game of skill than it is a game of chance, and should therefore be omitted for the UIGEA altogether. The PPA has made claims that the trial court judge was responsible for making a decision on the issue, but failed to do so. They feel that had this issue been addressed, the judge would have ruled in favor of poker.

                This particular hearing has received a great deal of attention and support, not only from internet casino and gaming advocates, but also net neutrality, free speech and civil liberties groups. The Electronic Frontier Foundation (EFF), the Center for Democracy and Technology (CDT) and the American Civil Liberties Union of Kentucky (ACLU) have all joined in filing an amicus brief on the grounds that the domain seizures violate the First Amendment, the Commerce Clause and the Due Process Clause of the U.S. Constitution.

                Kentucky Attorney General Jack Conway, who gave no comment on during the original hearing, has requested that his name be removed from the domain case in an attempt to distance himself from the ruling. The seizure action was initiated by Secretary of Justice and Public Safety J. Michael Brown rather than the Attorney General.

                In its brief, iMEGA noted that Attorney General Conway must appear on behalf of Kentucky in all cases in the Court of Appeals in which the Commonwealth is involved.

                “Now, we hope to have a fair hearing regarding our petition, because we’re confident that Kentucky law is on our side, and that the lower court erred in ordering these seizures,” Brennan continued.

                “The bottom line is that this move by Kentucky cannot be allowed to stand, because if it did, it would hand an ‘ultimate weapon’ to governments here and abroad to stifle Internet content that does not meet their approval.”