Insight on the Kentucky case

A few days ago, I opined, in a completely unresearched, off-the-cuff post, that the Kentucky governor's attempt to take control of various gambling-related domain names was doomed to failure.

The minimum I probably should have done before popping off like that might have included taking the time to read the statute involved--the one under which the state claimed the right to the court-ordered seizure. Had I done so, I'm confident that the ENORMOUS hurdle identified by Bill Poser at Language Log would have jumped out at me.

Expanding a bit on Poser's point, the statute defines a "gambling device" in such a way that all of the following properties must be met:

1. It is a "machine" or "mechanical...device."

2. It is "designed and manufactured primarily for use in connection with gambling."

3. When "operated," the device "may deliver, as the result of the application of an element of chance, any money or property," or the operation of the device may entitle the operator to same.

Kentucky is rather ludicrously arguing that the Internet domain names themselves constitute "gambling devices" under this statute. I've read a ton of court cases involving statutory interpretation, and I find it unimaginable that any court could accept the argument that this definition is sufficiently broad to include a domain name.

It will be interesting to watch the state's attorneys tiptoe through this, and explain to the world how a domain name is a "machine" or a "mechanical...device," how it was "designed and manufactured" at all, let alone designed and manufactured primarily for use in connection with gambling, and how operation of this "device," as a result of the application of an element of chance, either delivers a monetary/property reward or entitles the operator to such.

The comments to the Language Log post are also well worth reading. In particular, the one touching on how Internet registries and registrars work was all new to me. That adds a complication beyond what was already puzzling me about whether ICANN is potentially subject to and/or willing to comply with state court orders, and I have no idea what to make of it. (See here for even more about how it matters where the registrars are physically located, and about ICANN's own rules for dispute resolution, responding to court orders, etc.)

But it now appears to me that that question will quickly become moot, because I doubt that the state can withstand even the most superficial challenge any defense attorney might make to the applicability of the statute.