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October-12-2008,
Comrade Beshear's Motion Should be Thrown Out...By Hartley Henderson

As one who has followed the online betting industry almost since its inception, I've seen a whole host of tactics employed by various forms of government in the U.S. to try and stop offshore gambling sites from offering their products stateside. Some of these tactics included issuing arrest warrants to online gambling operators for violating the wire act, arresting offshore operators who foolishly stepped foot in the United States long after the original arrests, confiscating offshore gambling funds in transit from payment processors, and, in the case of Washington State, passing a law which makes its own citizens felons for placing bets. The attempts were always a bit underhanded and hypocritical, but none comes close to the motion that was filed in Kentucky. Steve Beshear, Kentucky governor, has filed a motion to seize 141 internet gambling domain names because he says the sites the domain names belong to take away revenue from Kentucky's signature industry, oppose the values of the Kentucky government and its residents, and inflict harm in general. He terms the web sites "leeches on our communities."

When first hearing of the motion my initial reaction was that the motion has to be illegal. After all, how could a state government simply seize the domain names of companies operating in a foreign jurisdiction? However, it appears the issue is more complicated. State laws permit the Kentucky department of justice to seize objectionable material or illegal gambling devices that come into the state and Kentucky is arguing the domain names are illegal gambling devices. As well, the United States controls all domain names via ICANN (Internet Corporation for Assigned Names and Numbers) and other countries have little or no say with regards to internet addresses. The Internet was a project of the Pentagon and the United States has demanded that they maintain full control of all internet addresses and domain names. Other countries have tried to fight the U.S. on this and in fact the European Union is making freedom of the internet a WTO issue, insisting that the American government transfer more control of internet addresses and domain names to other countries, i.e. that the place where the site operates should be controlled by the government in that place. Thus far, however, the U.S. government has refused to give up the control. As well, because of the history of the internet, most domain names were initially registered by U.S. companies, such as Network Solutions and GoDaddy.com. Kentucky is demanding that the registrars inform the site owners that they are in violation of Kentucky law and hence must forfeit the domain names to the state unless they block Kentucky residents from accessing the sites. Of course blocking Kentucky residents from select websites is virtually impossible as the state of Kentucky well knows. It should also be noted that Network Solutions is fighting the motion vigorously, while GoDaddy.com is taking a wait and see attitude.

Upon filing the motion, many defendants, including iMEGA and lawyers for countries that run gambling sites, among others, have come forward claiming the motion is ludicrous because Kentucky doesn't have jurisdiction. The defendants claim the motion violates international and interstate commerce laws and sets a dangerous precedent. It does indeed, but there is one other problem with Beshear's motion...it is extremely undemocratic. In fact some may say it is actually communist. When reporters went to the Beijing Olympics a couple of months back there was an outcry from American reporters and the U.S. government claiming that many web sites were being blocked by the Chinese government, which is unacceptable. The media claimed that the internet must be free and not subject to the whims of a totalitarian government. The Chinese authorities argued that they didn't want the Chinese public accessing those sites because the content was dangerous to Chinese residents, as they often are in opposition to the values of the Chinese government. I guess the Chinese government should have said that they wanted those sites blocked because the sites are "leeches on our communities." Make no mistake about it, there is no difference between what the Chinese government does and what Kentucky is attempting to do, with one exception - the Chinese government didn't try to seize control of foreign domain names.

Beshear's lawyers have argued that the state's motion does not violate international commerce laws or agreements because the state is not trying to seize the sites themselves, simply the domain names and addresses. The state equates this to any person who owns a house at, say, 25 Main Street, Kentucky USA. While the individual owns the house, they don't own the address. So if the government decides to rename Main Street or change the numbering system on the street that is their prerogative, and the house owner has no say in the matter. But, again, what Beshear fails to acknowledge is that when those address changes occur it is always done in consultation with residents and isn't intentionally done to create confusion as Beshear is hoping to do with the state's motion. The idea that you can solve a problem by simply making the issue vanish is something one would expect to see in the old Soviet Union, not the United States.

It was widely reported that in communist Russia when subversives would meet in a nightclub or restaurant and the government found out about it they would not only close the nightclub and take down the signs so that the government's opponents couldn't find the place, but they would also send the dissenters off to Siberia where those dissenters would never be heard from again. The communist government would insist that they were doing nothing wrong since they weren't actually killing the dissenters, but obviously the goal was to move them to a place where the rest of the people in Russia wouldn't be able to access them, thereby quashing the message. As for foreign dissention, when someone in another country would write something negative about the Russian government, the citizenry of Russia never saw those messages because the Soviet government intercepted all correspondence and only published the messages it wanted the Russian public to see.

In fact the exact same thing is still happening today in China and North Korea. And make no mistake about it - that is precisely what Kentucky is attempting to do. The government has stated that they don't like the product being offered by the gambling websites and feel it threatens the values of its citizens. Therefore they are attempting to block the citizens from seeing the "offensive" material, and if they can't do that they will simply take away their identity and send them off into another area where they hope the citizens won't be able to find them. It is indeed Communist Russia again.

But aside from the seedy way Kentucky is attempting to stop online gambling, there is one other issue that is very troubling to groups like iMEGA: the fact that Kentucky is trying to enact a Manifest Destiny-like control over the internet. While ICANN may be located in, and controlled by, the U.S., and while the domain names may have been registered in the United States, the spirit of the rules regarding the internet were meant to be global. Kentucky may indeed be correct that the laws as they are written give them the right to seize domain names of foreign operators, but it's difficult for anyone to believe that control of the address of say BBC's website or the Hong Kong Jockey Club's website should belong to anyone other than the sites themselves, or at the very least the UK or Hong Kong governments.

As a close Jewish friend of mine said to me when I was discussing a judges decision in a case that seemed to oppose the convoluted ruling of a law - "this isn't the Talmud." In better words, judges must often use common sense. Rules are regularly written in a way that oppose the real intention of the laws themselves, and in those cases it is imperative that the judges take into account the real meaning behind the laws and throw out the rhetoric. This very case seems to be a case like that. Beshear may indeed have legal ground to take those domain names given the ridiculous way the state law is written. But the courts must ask themselves the following: Was it really the intention of the U.S. government to make it so that the U.S. is allowed to control every activity and address of all sites around the world? And is it really in the interest of Kentucky residents that they not be allowed the freedom to ever view "objectionable material"? Lastly, the courts must ask themselves whether a positive ruling for Kentucky will put them in the same league as China, North Korea and the other Axis of Evil (as was named by George Bush) because they are attempting to control the thoughts and actions of its citizens by blocking internet access. If the judge in this case really believes in democracy and freedom of speech and the internet he should toss the case out of court next week.

10-12-2008
Hartley Henderson
MajorWager.com
henderson@majorwager.com

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