Judges without frontiers
A judge in Kentucky has ordered the seizure of 141 domain names belonging to international online casinos because he believes they are breaking Kentucky state law.
Kentucky has strict anti-gaming laws, which may come as a surprise to you considering that it is home to the Kentucky Derby, one of the most heavily wagered horse races in the world, but it is the right of the State of Kentucky and every other US state to formulate its own laws, no matter how strange they may seem to the rest of us. It was in response to a complaint about online gambling filed by Kentucky's Justice and Public Safety Cabinet that Franklin County Circuit Judge Thomas Wingate ordered the seizure of 141 domain names accused of "illegally offering gambling opportunities". The domains listed included well-known names such as absolutepoker.com and ultimatebet.com, although it didn't include the heavily promoted partypoker.com.
What is remarkable about this judgement is that the companies owning the seized domains are not based in Franklin County, not in Kentucky, not even in the USA. Absolute Poker and Ultimate Bet, for example, are both owned by Tokwiro Enterprises based in Quebec, Canada where the services they offer are entirely legal, as they are in most other countries. The domain names, which are international domain names, not country specific, are registered in Portugal and Malta respectively. How can a judge in Kentucky believe he has the authority to make this order or to enforce it? In fact, shortly after he made the order, the ownership of the domains in the DNS records was briefly shown as changed to the State of Kentucky, but shortly after that they reverted to their proper owners.
The judge in this case has said he will lift the order if the owners of the online casinos implement systems to block the use of their websites by residents of Kentucky. The judge apparently believes this technology is simple and straightforward. It would be more straightforward and more enforceable to require Kentucky ISPs to block access to the banned websites, and to prosecute the Kentucky residents who flout local gambling laws.
In another case with international ramifications, a UK judge arrived at a better decision, although not necessarily for the correct reasons. An Australian academic, Dr Gerald Toben, is accused of breaking German law between the years 2000 and 2004 by publishing anti-semitic materials in the form of holocaust denial. Whilst evidence for the holocaust seems undeniable, and Toben's views are controversial and offensive to many, surely academics still have a right to ask questions, to be sceptical. The articles in question were published on his Australian website and were not illegal in Australia.
In October, Dr Toben, an Australian passport holder, was flying from Dubai to the USA which required a change of planes at Heathrow. Upon landing at Heathrow, Toben was arrested under a European Arrest Warrant issued by a court in Germany. However, UK Judge Daphne Wickham ruled that the warrant was invalid, not because the accused had committed no crime under UK law, nor under his native Australian law, not because she felt Toben would not receive a fair trial in Germany, but because the warrant lacked specific details of the website where the controversial materials had been hosted, simply referring to articles published on the "world wide web". Dr Toben was granted bail on a £100,000 bond. Conditions of his bail include fixed residency, a prohibition on using the internet and a block on giving interviews to the media.
The European Arrest Warrant was introduced in 2001, in the wake of the 9/11 attacks, to fast track the procedures for RETURNING people to other member states where the crime was committed. Germany is arguing that publishing a website in Australia is the equivalent of committing a crime in Germany. If you accept this then we are all at risk. If you publish a website endorsing Christianity, are you committing a crime in non-Christian countries? If you publish a website promoting pubs and beers, have you committed a crime in countries which ban the consumption of alcohol?
23rd November 2008
This article comes from the SKILLZONE email newsletter, published monthly since January 2008, and covering topics related to technology and the internet. All articles and artwork in the SKILLZONE newsletter are orignal content. If you would like to receive the newsletter direct to your inbox each month, please SUBSCRIBE here. It is free, and you don't get added to any other mailing lists. It uses best-practice confirmed opt-in only, and you may unsubscribe at any time.