A domain name is not a gambling device
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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: 205.204.237.68, 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.
John Cowan said,
September 26, 2008 @ 6:47 pm
What's interesting about this order, I think, is that it's in rem (against the thing), a proceeding historically used to seize ships when their owners were out of reach or not known. And of course ex parte orders aren't about due process; they are about taking immediate action. The domain owners will get their turn in court, assuming they actually want it.
Bill Poser said,
September 26, 2008 @ 7:03 pm
Yes, it is true that there will eventually be a hearing at which the domain name owners can argue that their domains shouldn't be seized, but this is hardly a case in which immediate action is justified. Ex parte proceedings do violate due process, so they are permitted only in exigent circumstances. Ex parte orders are supposed to be used when irreparable harm will occur in the absence of the order and that harm outweighs the damage that may be caused by the order. Kentucky has not even made an argument that the continued operation of internet gambling websites will cause irreparable harm to a legitimate state interest.
Dan T. said,
September 26, 2008 @ 10:16 pm
Technically, a domain name is a "record" of sorts, given that it's an entry in a database at the registry, and a line in the zone file of its hosting provider.
James Wimberley said,
September 27, 2008 @ 4:08 am
I disagree with Dan. A logical record (as opposed to a physical one, like a photo or piece of paper) is surely propositional: it asserts a predicate of one or more subjects. In a database, a record must therefore have at least two columns. The minimum domain name record would connect a name with its owner.
But would it make sense to seize>/i> such a record? Not to me. If the purpose is evidential (as in a fraud case), the court just needs a copy of the data file on a particular day.
K. said,
September 27, 2008 @ 7:44 am
Commerce clause? It might not be a linguistic point, I understand, but I'm not quite sure how the U.S. Congress' mandate to regulate commerce is relevant to an action taken by a Franklin County Court. Unless Incorporation has spread beyond the amendments these days…
Nick Lamb said,
September 27, 2008 @ 8:28 am
It's interesting that Kentucky is going after the registrars rather than the registry (assuming they even understand why they're different).
The registry in this case (all the affected names are in the same registry) is the .com registry managed by Verisign. It generally does whatever makes most money, regardless of its customers greater interests or world opinion. As a result the .com registry is simultaneously the world's largest, the most profitable and the worst managed.
Verisign is at least a US corporation, and it certainly does business in Kentucky – which means that in theory it could be within the practical grasp of this Kentucky court. Whereas registrars are based all over the world, some of them may have no presence in the US, and no plans for corporate officers to visit, making a Kentucky court order as empty as Canute's.
So in terms of the practicality of this court order, it would have made more sense to go directly to the registry. But, I think Kentucky doesn't want these nearly worthless names anyway. It wants information about the businesses operating them. The registry wouldn't have such information, but the registrars do, because they need to get paid. Indeed one of the services for which they're being paid is hiding the true identity of the registrant (in some registries this is forbidden, but not in .com). If I'm right, this is the equivalent of police officers threatening to "confiscate" someone's drugs – as leverage to get the name of the dealer.
Sasha Volokh said,
September 27, 2008 @ 10:30 am
K.: There's a doctrine called the "Dormant Commerce Clause," which holds that states can't burden interstate commerce, either explicitly (Kentucky bans or taxes imports from Tennessee) or implicitly when there's a substantial burden (Kentucky requires special Kentucky tires on any trucks driving around in Kentucky, which burdens any trucks coming in from out-of-state). This doctrine is judge-made (and supposedly derived from the actual Commerce Clause, which only governs Congress), but is fairly old.
Bill Poser said,
September 27, 2008 @ 1:18 pm
I should perhaps have been clearer that I do not necessarily endorse all of the non-linguistic objections that I listed – the list is just a list of points that I have encountered. I have no clear position on gambling: I find most things associated with gambling distasteful but am not sure that banning it is wise.
The argument that the court's action violates the Commerce Clause is that it affects interstate commerce, which only the federal government has the authority to do.
As for whether a domain name is a record, it is true that in order to be useful domain names must be entered in a database, but that just means that there must be a record of the domain name, not that the domain name is a record. In any case, it certainly isn't a "gambling record".
I'm not sure that this is an attempt to obtain information about the owners of the sites. If they submit to the seizure, no information about them will be revealed. If they challenge it on legal grounds, I don't think they will have to reveal very much. Only if they challenge it on grounds that allow the State to conduct extensive discovery would they be likely to have to reveal much information about themselves. On the other hand, if they can no longer use the domain names, it will cut into their income as customers will find them harder to get to. The companies should be able to get around this by advertising their IP addresses, but it will take them some time to spread this information around, and people will be more likely to forget an IP address than a domain name. So, seizing the domain names probably is an effective method of interfering with their business, though I doubt it will eliminate it.
Oskar said,
September 29, 2008 @ 10:20 am
Not to be a stickler or anything, but a domain name is most certainly a record. The proper term for it is even "DNS record" (for those of you who don't know, "DNS" stands for "Domain Name System" and is the technology that makes it possible to type in a nice short internet address instead of a string of numbers).
For details, see the Wikipedia article on DNS, and the list of DNS record types. Your point still stands though, it is certainly not a gambling record. But it is a record, in both the technical and legal sense of the word.
Oskar said,
September 29, 2008 @ 10:22 am
Silly me, I hadn't actually read through your post where you explain how DNS work. I apologize, I didn't mean to sound smug or anything…
Stephen Jones said,
September 30, 2008 @ 8:01 am
How on earth do they intend to seize the domain names anyway. The Franklin County Court has no jursidiction, let alone practical control, over domain name registrars. I thought even the US government had surrendered control.
Oskar said,
October 1, 2008 @ 9:42 am
Stephen Jones: The governing body of domain names is The Internet Corporporation For Assigned Names And Numbers, or ICANN. They're the ones that (for instance) decides what the top-level domain names should be (i.e. .com, .net, .edu, etc.). They accredit so-called domain name registrars to sell domain names to customers. These are corporations like GoDaddy. If you want to remove a domain name from the net, that's who you complain to.
There is a process for solving domain name disputes called the Uniform Domain Name Dispute Resolution Policy, of which I know very little so I can't say anything interesting about it. It wouldn't seem to apply in this case, however, since this is mostly used in instances like where someone registers a domain name that's a trademark of some other company.
Courts, however, have the power to seize domain names if they want to. The problem (as you point out) is jurisdiction. I seriously doubt that the registrar is located in Franklin Country Court (and ICANN certainly isn't, it's in California). I'm not a lawyer, but I would assume that you have to go to federal court to get this done.
As for whether or not the American Government has control over these issues, I can't really speak to. ICANN is an independent organization (a non-profit), but it was essentially created by the government and is funded by the Department of Commerce (this is somewhat peeving to the rest of the world, why should the American government and an American non-profit be in charge of the internet? There have been suggestions of making ICANN a division of the UN, but it's never gone anywhere). Whether or not the government can go in and monkey with its operation, I don't know, but they certainly take a hands-off policy now.
Chip Brant said,
December 17, 2009 @ 2:53 am
The thought that Kentucky Governor Beshear believes he somehow has jurisdiction over the entire internet is a bit over zealous to say the least. To think of it another way: if ANY government in ANY country had a problem with ANY website, would they have the right to subpoena site owners, grill them in court, and then strip them of their property?
Iran, for example, might take right-wing American websites to court believing that they propagate hate for the Middle East. Would the USA then stand for Iran "seizing" these domains? Likewise, taking away online casinos gaming websites would be equally as offensive to nations that allow internet gaming.
Obviously this example is a bit of a hyperbole, but the point is, domains are not devices but identities, and insofar as I can tell, taking away identities flies in the face of the USA's 1st amendment and common sense.