ACLU Discusses Kentucky Internet Gaming Brief



There have been several major organizations that have filed briefs in the ongoing legal battle in Kentucky, each looking to impart its unique viewpoints on the court. Among them is the American Civil Liberties Union, or ACLU, which submitted a 15 page brief outlining its opinion of the seizure and potential forfeiture of 141 internet gambling domain names. The ACLU of Kentucky’s Bill Sharp sat down with Poker News Daily to discuss its submission.

Throughout the brief, the major national organization focuses on violations of the First Amendment of the United States Constitution. It explains, “Any order purporting to transfer domain name registrations from registrants to the Commonwealth of Kentucky raises serious First Amendment concerns because it would necessarily impede access to material that is legal not only in Kentucky, but throughout the country and world.” Like others that have been involved in the legal proceedings, the ACLU points out that seizing domain names belonging to online poker rooms like PokerStars and PlayersOnly sets a very dangerous precedent for the rest of the internet.

Sharp told Poker News Daily, “The trial court’s ruling in this case was substantially overboard in regards to free speech implications. For that reason alone, the ACLU’s involvement was warranted. That’s the primary consideration. The Commerce Clause issue is involved as well, but is not something that we would argue.” The Commerce Clause holds that the Federal Government is charged with regulating commerce between the United States and foreign nations. In this case, Kentucky is taking on that role by seizing domain names belonging to companies located in Europe, Central America, and other parts of the world.

The brief keenly notes that if the sites in question changed their content in the future, the domains would still belong to the Commonwealth: “Because content on an internet server can readily be changed, the permanent seizure of a domain name continues to impede access to speech even if the content changes so that it no longer violates Kentucky law.” The trail court judge in the case, Thomas Wingate, ordered that the sites in question block access by Kentucky residents, else risk losing their domain names worldwide. Cake Poker, Ultimate Bet, Absolute Poker, and the Merge Gaming Network did just that. The Microgaming Network initially blocked access by Kentucky residents, but then elected to exit the American market altogether. U.S. users who try to access Microgaming.com are met with the greeting “Site not available.”

On Friday, December 12th, representatives from the Interactive Media Entertainment and Gaming Association (iMEGA), Interactive Gaming Council (IGC), and the Kentucky Justice and Public Safety Cabinet argued in front of a three judge Court of Appeals panel. A ruling may occur as soon as January, although no official timeline has been given. Sharp told Poker News Daily about the Court of Appeals, “There is certainly recognition of the seriousness of the issue and the potential scope of the ruling.”

Other organizations that filed briefs in Kentucky include Network Solutions, the Electronic Frontier Foundation, the Center for Democracy and Technology, and the Poker Players Alliance (PPA). The latter is the leading lobbying group for the online poker industry. Its brief focused on the fact that poker is a game of skill, which means it would be legal in Kentucky. Judge Wingate stated that the cards ultimately determine the winner of a poker hand and therefore poker is a game of chance. A final forfeiture hearing had been scheduled for December 3rd. It is now postponed indefinitely pending the outcome of the Court of Appeals case.

The ACLU focuses on violations of the First Amendment, equal protection of individuals under the law, due process rights, and privacy rights. The New York-based organization has 200 staff attorneys and offices in all 50 U.S. states. Recent efforts have focused on the U.S. prison in Guantánamo Bay, Native American voting rights, and human trafficking.

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