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ANITA RAMASASTRY

Anita Ramasastry is an associate professor of law and a director of the Shidler Center for Law, Commerce, & Technology at the University of Washington School of Law in Seattle, Washington. Prior to joining the University of Washington faculty, Professor Ramasastry was a staff attorney at the Federal Reserve Bank of New York.

Ramasastry graduated with honors from Harvard Law School and clerked for Justice Alan B. Handler of the New Jersey Supreme Court. She has also practiced law with the international law firm of White & Case in Budapest, Hungary, and served as an assistant professor of law and law reform associate at the Central European University in Budapest, Hungary (founded by financier George Soros). More recently, Ramasastry was a Senior Attorney and Advisor to the Claims Resolution Tribunal for Dormant Accounts in Zurich, Switzerland. Ramasastry's research interests involve law and technology, commercial law, and law and globalization. She is a consultant to the European Bank for Reconstruction and Development as well as the United States Agency for International Development.

Ramasastry writes on law and technology, international law and globalization, civil rights, and civil liberties.

A Kentucky Court Approves the Seizure of Out-of-State Companies? Domain Names: A Dangerous Precedent that May Chill Free Speech and Impede Global Internet Communications

By ANITA RAMASASTRY FINDLAW

Monday, Dec. 22, 2008



Does a government or court have the right to seize a domain name when a website's activities are illegal where the government or court sits, but legal elsewhere?



This is the question raised in a recent Kentucky dispute over online gambling websites. Online gambling is legal in many places in the world, but illegal in the United States. Thus, the State of Kentucky ? in an effort to impede online gaming by state residents ? went to court to seize 141 domain names as a means of shutting down many popular online casinos. All of the domain-name owners likely reside out-of-state.



In October, Kentucky Judge Thomas Wingate held that Kentucky's seizure was lawful on the ground that the domain names were illegal "gambling devices" subject to Kentucky's anti-gambling laws. He reached that conclusion first ex parte (that is, without the presence of the site operators' attorneys) and then after a hearing. Judge Wingate thus ordered various domain name registrars to transfer ownership of the 141 domain names to Kentucky officials ? which will effectively shut down the websites, or at least deny potential users access to those sites via their popular domain names. To reach the conclusion that Kentucky had the power to seize the domain names, the judge had to make several logical leaps ? such as finding that the domain names were intangible property located in Kentucky.



Just last week, three judges on the Kentucky Court of Appeals heard oral argument in the case, which has the Internet world spinning. In the interim, the Court of Appeals has stayed the order, so the domain names will not be transferred to the State until and unless the Court of Appeals rules in the State's favor. The primary basis of the appeal is that the attempted seizure violates the U.S. Constitution and Supreme Court precedent, including the First Amendment, and the principle that States cannot interfere with commerce that is national or global.



In this column, I will discuss the lower court's ruling and why it is flawed.



click on above heading for her analysis.