The Governor of Kentucky is attempting to seize 141 domain names associated with internet gambling sites on the grounds that internet gambling is illegal in Kentucky. On the State's ex parte motion, without a hearing, a Franklin County court ordered [pdf document] the transfer of all 141 domain names to the State of Kentucky. This has aroused considerable controversy, for reasons including the following:
- Many people like internet gambling.
- Many people think that it is none of the State's business.
- The State's action is not the result of a consistent anti-gambling policy but is pure rent-seeking. Kentucky is a gambling-friendly state. It is just trying to reduce the competition.
- Quite a few of the domain names are not in fact associated with internet gambling sites.
- The court's ex parte order violates due process.
- The court does not have jurisdiction over either the businesses or the domain name registrars.
- The court's action violates the Commerce Clause of the Constitution.
In addition to all of the above, there is a linguistic point, namely the fact that the Kentucky statute under whose authority the court acted appears to be inapplicable. The statute in question is Kentucky Revised Statutes 528.100 [pdf document]:
Any gambling device or gambling record possessed or used in violation of this chapter is forfeited to the state, and shall be disposed of in accordance with KRS 500.090, except that the provisions of this section shall not apply to charitable gaming activity as defined by KRS 528.010(10).
The statute authorizes the seizure of "gambling device"s and "gambling record"s. A domain name is not a record of any sort, much less a "gambling record". Nor is it a "gambling device". We need not rely on our generic definitions of "device", since the Kentucky Revised Statues 528.010 [pdf document] define "gambling device" as follows:
(4) "Gambling device" means: (a) Any so-called slot machine or any other machine or mechanical device an essential part of which is a drum or reel with insignia thereon, and which when operated may deliver, as a result of the application of an element of chance, any money or property, or by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property; or (b) Any other machine or any mechanical or other device, including but not limited to roulette wheels, gambling tables and similar devices, designed and manufactured primarily for use in connection with gambling and which when operated may deliver, as the result of the application of an element of chance, any money or property, or by the operation of which a person may become entitled to receive, as the result of the application of an element of chance, any money or property;
It is clear from this definition that the statute applies only to machines of some sort. A domain name is not a machine. A domain name is simply a convenient alias for an IP address, which is what computer networks actually use. IP addresses look like this: 126.96.36.199, for which one domain name is governor.ky.gov. A domain name is therefore an alias for the address of a machine. Here is an analogy. Suppose that a court has authority to seize a bank account. The bank account is identified by the holder's social security number, let's say 008-62-5463. The person with that social security number has one or more names, including, let us say, "John Quincy Doe". Instead of seizing the bank account, the court seizes the name "John Quincy Doe", forbidding the person formerly holding this name from using it.
Based on the above, what might be seizable under the Kentucky statute are the computers on which the gambling sites run. However, since the statute defines "gambling device" as "designed and manufactured primarily for use in connection with gambling", even the computers themselves are not gambling devices.
The interpretation of statutes is not without its subtleties, but this appears to be a no-brainer. By no stretch of the imagination is a domain name a "gambling device" or "gambling record". How the governor or the court might think that KRS 528.100 authorizes the seizure of domain names is a mystery.