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Home Industry Press Releases Internet Commerce Association Addresses Kentucky Supreme Court
Internet Commerce Association Addresses Kentucky Supreme Court PDF Print E-mail
Written by Internet Commerce Association   
Friday, 17 April 2009 20:26
ICA Tells Kentucky Supreme Court to Uphold Ruling in Domain Name Seizure Case

Washington, April 17, 2009 – The Internet Commerce Association (ICA) today joined in a Friend-of-the-Court brief filed with the Kentucky Supreme Court urging it to uphold the decision of the Court of Appeals that domain names are not “gambling devices” subject to seizure under Kentucky law. Other organizations signing this brief were the Center for Democracy and Technology (CDT), Electronic Frontier Foundation (EFF) and the American Civil Liberties Union of Kentucky (ACLU-KY). The brief responds to an appeal filed by the Commonwealth of Kentucky after it lost at the Court of Appeals level. Kentucky’s 2008 seizure of gambling site domains sent shock waves through the domain name investment and development community because, if permitted by the courts, it would have established an extremely dangerous precedent by which any government entity could claim jurisdiction over a domain name simply because its website could be viewed from within its borders, and then attempt to seize the domain name without advance notice or due process.

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:

1. 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.
2. Such state action is preempted by the Commerce Clause of the Constitution, which prohibits state regulation of interstate and foreign commerce.
3. Such state action conflicts with and is preempted by the Federal Communications Decency Act, which immunizes providers of interactive computer services from the threat of such state action.
4. 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).
5. 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.”

About Internet Commerce Association
The Internet Commerce Association, a trade group comprised of members who own, develop and operate domain names for the purposes of online commerce, is a leading voice for domain owners to ensure their rights are not affected by the politics of Washington, the policies of ICANN, or wherever threats to our membership exist. For additional information, please visit www.InternetCommerce.org.

For more information, please contact:

Philip S. Corwin
Internet Commerce Association
1301 Pennsylvania Ave., NW
Suite 500
Washington, DC 20004
202-347-6875 (office)
202-347-6876 (fax)

Last Updated on Saturday, 07 July 2007 09:54
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