Judge Wingate, the Judge in the Kentucky domain seizure case, said today that he needs seven days to decide whether to dismiss the case or to move forward with a forfeiture hearing.
The Governor’s attorney attacked the “owners” of the domain names subject to the seizure order repeatedly, accusing them of operating illegal casinos in Kentucky. This he justifies because the websites, which operate and are regulated in other jurisdictions, can be accessed from Kentucky. However, he didn’t comment on the defense’s statement that by that principle, TwinSpires.com, which is operated in and regulated by Kentucky, could be seized by other states.
- The hearing lasted for 3 1/2 hours, from 9:30 AM until 1 PM. Just by sheer numbers, the defense dominated the time before the Judge. I lost count, but about a dozen attorneys spoke for the defense and three for the Governor.
- Plaintiff’s counsel, representing the Governor, continuously raised objections to the court hearing any statements from those claiming to represent defendant domain names on the grounds that they were “surrogates” and did not directly represent any of the entities owning the names covered by the seizure order. He said that only the owners should be able to present a defense and that the owners must submit to Kentucky jurisdiction and stand up to cross examination by the plaintiff (the Governor). The judge did not acquiesce and let opposing counsel speak.
- In fairness, the defense argued that the personal injury attorney representing the Governor and the Justice Department did not have standing in the court.
- Plaintiff’s counsel argued for the position that a domain name/website is subject to jurisdiction anywhere in the world from which it can be viewed. He said domain names are virtual “property” and that they are anywhere and everywhere. (Note: This is an absurd position and contrary to US case law.)
- Defense argued that the domains are not in Kentucky and that they are not property, that they are just letters and numbers that enable people to find websites, like the letters and numbers that make up the address of a house. Taking away the address doesn’t take away the house or the ability for someone to visit it to gamble.
- Online gambling is not implicitly illegal in the commonwealth of Kentucky. The defense gave TwinSpires.com as an example of online gambling that operates legally in Kentucky. Defense then went on to categorize the Governor’s actions as a protectionist measure to remove out of state and foreign competition of Kentuckian businesses. This would be in violation of the US Constitution Commerce clause.
- Lawrence Walters addressed one of the most important issues to most of our members, since I don’t know of any ICA members are operating gambling sites. He addressed the fact that many of the domain in the seizure order were not operating gambling sites, but were being seized only because they contained advertising for online gambling. He characterized this use as constitutionally protected commercial speech, that this seizure is in violation of First Amendment rights. By the way, I have long admired Walter’s domain name, FirstAmendment.com.
- Network Solutions had two attorneys present objecting to the seizure; they were the only registrar whose legal representatives addressed the court. I am not sure that any other registrar even had any representatives present. ICA thanks Network Solutions for taking a stand against this unreasonable order.
- The ICA amicus brief received praise and appreciation from all the other defendants’ counsel.
- In addition to fair treatment of all parties, the judge’s oral statements indicated that he understood that this was an important case with implications that went far beyond Kentucky and gambling.
- The judge took the matter under advisement and indicated that he expects to rule in seven days (Tuesday, October 14th).
In one light moment in the hearing, Timothy Hyland, Attorney for Network Solutions suggested that the Judge might want to register JudgeWingate.com. The Judge replied “I already did, in (2000 something, not sure of year). Someone told me that it might help me get elected and apparently it did.” This got a laugh from both sides. Wouldn’t you know it. I decided to do a whois lookup to try to nail down when he registered JudgeWingate.com. The domain was not registered; it had expired. Well, I could not in good conscientiousness publish this story without first acquiring the domain for the Judge. I know what happens when unregistered domain names are published in reports like this one. Does anyone know the Judge’s email address so I can return the domain to him? Do not tell me something at JudgeWingate.com.
Honorable Judge Wingate, if you read this, I acquired the domain name as a courtesy and out of respect for your office. If you are interested in the domain, I ask you to reimburse out of pocket cost. If you no longer have an interest in the domain, it will be used for the benefit of the internet commerce community by pointing to news about this case.