In September, the state of Kentucky won a legal victory in its fight to control gambling within its borders, as a judge ordered the seizure of the domain name registrations of a variety of online gambling outfits. Although the ruling targeted 141 sites, the legal challenge has been accepted by two of the businesses targeted, which have filed an appeal in the case. Their appeal has now been joined by the Electronic Frontier Foundation, ACLU, and the Center for Democracy and Technology, who use an amicus brief to argue that the initial seizure ruling was flawed on several levels.

Kentucky has fairly strict laws regulating gambling; wagering is legal, but only on the state's terms. To an extent, its attempts to go after online gambling outfits represent an attempt to push more people into using its legally sanctioned (and tax-generating) gambling facilities (remember, this is the home of the Kentucky Derby). The goal of this legal action is simply to prevent the state's residents from patronizing online alternatives. But, as noted in the amicus brief, the route it has taken to get there has left it running afoul of no end of legal problems.

The brief lays out a series of arguments, the most interesting of them first. We'll go through them in reverse order. The first is simply that the registrars that handle the domains aren't operated in Kentucky, and the state has not demonstrated that it has jurisdiction over them—in fact, the amicus brief claims it cannot possibly demonstrate that it does. So, there's no way for it to compel them to do anything in this case.

More significant is that the ruling being appealed would allow Kentucky to effectively control commerce in other states and nations, leaving it on the wrong side of the Constitution. "Under the Commerce Clause," the authors state, "it is simply not permissible for Kentucky to prohibit access by residents of Las Vegas, for example, to access a site that is lawful in Nevada." Beyond the Constitution, the seizure is also likely to cause problems at the World Trade Organization, where the US stance on online gambling has already come under fire. The brief also raises the ominous prospect that regimes that limit free speech will latch onto the example and start seizing the domains of any website that offends them.

The ruling gave the sites the alternative of using geographic filters to block access by Kentucky residents, but that is likely to cause problems with the patchwork of state and international laws that determine what's legal in what location. Not only would it shift the burden and cost of enforcing, say, the Great Firewall of China onto individual content providers, but geographic filtering simply doesn't work. The brief cites the limited accuracy of existing services, which could easily place residents of neighboring states on the wrong side of the filter, as well as anonymizing services like Tor and Anonymize.com.

The brief also claims that the decision would, "chill speech of all types." Even an online gambling site is likely to have legally protected content hosted within its domain; the seizure of the domain would limit access to that content as well. The legal reasoning behind the seizures appears to have few limits. "Under the court's theory," it reads, "Kentucky would be able to seize any domain name, from anywhere in the world, that pointed to a website that Kentucky deemed to violate local law." The authors go on to list a variety of reasons that this decision is overly broad and unconstitutional.

The court decision seems to have been flawed on a number of levels, but the groups that filed the amicus brief focused on the free speech issues. "If the Kentucky order is upheld, no speech that conflicts with any law, anywhere in the world, would be safe from censorship," stated the CDT's John Morris. "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."

Further reading

The filing (PDF).