Kentucky judge seizes control of the Internet

But judge's attempt to stop Internet gambling is a bad bet

Kentucky judge's attempt to ban Internet gambling a bad bet, columnist writes.

Last September, Franklin County (Ky.) Circuit Judge Thomas Wingate decided that the entire, worldwide 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 those will be argued during the appeals process. For now, however, the judge's ruling -- that the state of Kentucky can tell someone halfway 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 continues to be 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 the same activity is promoted or damned depending on the venue. Judge Wingate ruled in September and reaffirmed in October that Internet gambling sites must block Kentucky's citizens from accessing them, and sites that don't comply will have to give up their domain names.

This decision pleased Kentucky Gov. Steve Beshear to no end, but did not please many others.

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, and some services, such as AOL, fail; about all the latter can figure out is which half of the country someone is in. Even if this technology were perfect and available at a reasonable cost, there still would be the problem of a Web-site operator even knowing that someplace thousands of miles away wanted to censor its citizens' Internet use.

The fundamental problems with the judge's decision, however, are jurisdiction and scaling. Under the U.S. Constitution, one state cannot tell citizens of another 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 offering services that are fully legal outside of Kentucky.

The biggest problem, however, is one of scaling. Chaos would reign if every local county judge had the authority to seize the domain names of Web sites that are doing something that might be seen as illegal in the county where the judge's courtroom is. 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 name of any Web site 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 and could seize the domain names of sites that refused. One could go on, but you get the idea -- if this decision stands, there are thousands of local laws that could be extended to the Internet.

The appeals process is underway, and the appeals court has halted any domain name seizures, at least for now.

I've not read many commentaries on this decision that suggest it can survive. Even Kentucky's 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.

Disclaimer: I do not know of any official courses on silliness at Harvard, but even if there were one, this example probably would 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.

Editor's note: Bradner will be talking about the future of the Internet at the Dec. 2 general meeting of The Greater Boston Users Group.


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