title:

Kentucky judge seizes control of the Internet

By: Scott Bradner

Last September Kentucky County District Court Judge Thomas Wingate decided that the whole world wide Internet is within the jurisdiction of the State of Kentucky.

There are many good legal arguments that show that the Judge's conclusion is absurd, and they will be argued during the appeals process, but, for now, the Judge's ruling that the State of Kentucky can tell someone half way around the world to stop using the Internet stands. It does not take much imagination to see the level of chaos that this ruling could cause if it is allowed to stand.

The particular case stems from Kentucky's attempt to control gambling over the Internet. Local gambling , such as on the Kentucky Derby, is just fine -- I guess they have a funky sense of morals in Kentucky where exactly the same activity is either promoted or dammed depending on the venue. Judge Wingate ruled in September and reaffirmed in October

(www.gpwa.org/news/Kentucky.vs.141.Internet.Domains.pdf) that Internet gambling sites had to block people from Kentucky from accessing their web sites or had to give up their domain names.

This decision pleased Kentucky Governor Steve Beshear no end

(http://www.governor.ky.gov/pressrelease.htm?PostingGUID=%7B6930A5AD-8BF6-499C-A4DB-70A354

4BFF7D%7D) but did not please very many other people.

There are lots of things wrong with the judge's logic. Technically, it is quite hard for a web site to do a reliable job of blocking access from a particular geographic area based on the IP address of the requesting computer. Some services let you get reasonably close but fail with services such as AOL where about all you can figure out is what half of the country someone is in. But even if this technology were perfect and available at a reasonable cost there would still be the problem of a web site operator even knowing that someplace thousands of miles away wanted to censor their citizen's use of the Internet.

But the fundamental problems with the Judge's decision are jurisdiction and scaling. Under the US Constitution one state can not tell the citizens of another state what they can do in their own state. Yet that is just what the judge would be doing if he seizes the domain names of web sites that are offering services that are fully legal outside of Kentucky.

But the biggest problem is one of scaling. Chaos would rein if every local county judge has the authority to seize domain names of web sites that are doing something that might be seen as illegal in the county where the judge has his or her courtroom. A judge in a dry county in Texas could seize the domain names of all alcohol related web sites and all web sites relating to sports sponsored by

alcohol producers. A judge in Wisconsin could seize the domain names of anyone who sold or discussed margarine. A judge in Syria could seize the domain names of any website that was run by or supported Jews. A judge in one of the many Maryland counties where car sales are illegal on Sunday could require that all car company web sites be turned off on Sunday or, if they refused, seize their domain names. On could go on but you get the idea -- there are thousands of local laws that could be extended to the Internet if this decision stands.

The appeals process is under way

(http://www.networkworld.com/news/2008/111408-groups-ask-kentucky-court-to.html) and the appeals court has halted any domain name seizures, at least for now.

(http://www.thedomains.com/2008/11/15/kentucky-appeals-court-grants-imega-petition-for-stay-on-domain-seizure-action/)

I've not read many commentaries on this decision that think it can survive, even the Kentucky Attorney General has asked that his name be dropped from the case, but this kind of silliness should give anyone who cares about the Internet quite a scare.

I do not know of any official courses on silliness at Harvard, but even if there were, this example would likely be too esoteric for such a class. I also do not know of a university opinion on this example of Kentucky's hubris and myopia so assume that the above one is mine.