ANNOUNCER: Welcome to Traverse Legal Radio Tech Spotlight. This program is sponsored by Traverse Legal, PLC, a law firm specializing in internet law, domain disputes, and technology company representation. That's Traverse Legal www.traverselegal.com. Welcome to the Vertio Tech Spotlight with your host, Damien Allen. DAMIEN: Good morning and welcome to the Traverse Legal Radio. I am Damien Allen, and you are listening to the Tech Spotlight. This morning we have with us via the phone, Jeffrey Reynolds of Precision Marketing Solutions, Inc. Good morning and welcome, Jeff.
JEFF: Good morning. Thanks so much for having me on. I wish it was under better circumstances.
DAMIEN: In deed. What my understanding is that the Kentucky governor, Steven Beshear has decided to up and snatch 141 domain names. The state of Kentucky seizes domain names for private owners. I have never heard of anything like this happening. How did this happen?
JEFF: Yeah, I think that’s the question that folks are sitting back and asking. You know, this came down back in September. Kentucky governor goes into court in Franklin County in Kentucky, says look, these site operators are running gaming websites harmful to our kids, but also opposes major economic competition with the Kentucky Derby and the gambling sites that Kentucky itself runs. Judge evidently quickly agrees and says, ok, that’s fine, let’s seize these 141 domain names. It included non-obscure websites. They include very credible and long standing websites including www.fulltiltpoker.com, www.riverbell.com, www.jackpotcity.com, www.goldenpalace.com. So not fly by night operations and the Judge mysteriously agrees with the governor and says yes ok, we think you’re within your rights to go ahead and do this. These domain owners find out after the fact, and now are engaged in a battle for their domain names and really for their businesses. This case has so many implications and so many ramifications not only for domain owners, but for anybody who wants to do business on the internet.
DAMIEN: So the 141 domains that were taken are all to my understanding they are all gaming sites?
JEFF: They are. They’re all gaming sites and we kind of sat back and said, look this is more than a gaming site, because if your argument is protecting children which seems to be woven into this then I can make a case that, you know, some adult sites potentially pose that threat or some other sites that pose even health education websites pose that potential kind of threat in terms of alarming and annoying kids and families, but more importantly I think the impetus of this really is the economic competition which means that any time you set up a website that competes with an industry that’s important to a particular government this would set a precedent where the governor can walk in and say, you know what, I don’t really like the competition, enough is enough. It’s time to stop. On our website www.boycottkentucky.com, I actually said, well if we extend this out to it’s logical conclusion then somebody should certainly stop EBay, because EBay has hurt garage sales nationwide. We run www.americanflags.com and I’m sure that I’ve put a dent in the big box stores ability to sell American flags and www.amazon.com has certainly hurt booksellers and you could go down the list and where does it stop? It’s the premise here that’s really troubling and the potential precedent that we set for ecommerce and business owners goes beyond the gaming world and those who operate gaming websites are rightfully outraged and mystified as to how this could happen. Folks who play online games which I didn’t anticipate this have come to us and signed the petition and made their phone calls to the governor saying it’s my right to go to work during the day, help pay your salary, in fact, as governor, and if I want to come home and play some competitive poker online why is it I can’t do that? What gives you the right as a governor of a relatively small state to come in and say you can’t do this anymore, because maybe you bet on the Kentucky Derby.
DAMIEN: This is an age old argument. Who should protecting and policing our children? As parents shouldn’t they be aware of what’s my child doing on the internet? The argument to me doesn’t really hold water.
JEFF: No, and I think it’s really week. I do think the economic argument is driving this; although, it’s amazing to me that given the fiscal challenges facing most states including Kentucky that this is how Governor Beshear would choose to spend his time, energy, and tax payer money. They filed in court that they had spent more than 500 man hours with sheriffs playing online games. You know, what’s the cost involved with that? And what’s probably a losing court battle and where’s the accountability to the tax payers once you’ve made your grand stand and gotten your national press and gotten everybody all in a huff and you’re probably going to walk away with a loss, and you know, where’s the accountability for an elected official who oversteps his bounds in the name of attracting international press which he’s obviously done.
DAMIEN: In deed. Well, Jeff, what is the current status of the legal proceedings?
JEFF: I’m not a lawyer, but I can give you the cliff notes version of what’s gone down here. September 18th the governor runs into court and gets a court order saying yeah, we think you can take the domain names. A number of groups have weighed in on this in opposition. Filing amicus briefs so the Internet Commerce Association has weighed in. The lead role on this really is the Interactive Media Entertainment and Gaming Association; otherwise, known as IMEGA. They filed a number of briefs. There was a pretty extensive hearing back on October 8th that lasted about 3 Ѕ hours in which the judge heard arguments both for and against taking these domain names. On October 16th he let the seizure order stand and said let’s have a final domain forfeiture hearing later in the year and that was originally scheduled for November 17th. At this point it has been postponed till December 3rd. I would imagine there’s a potential for some additional delays there, because there’s a number of issues in this case. I mean really the crux of it beyond the governor overstepping his bounds is the law that would enable potentially Kentucky to do this says you can go ahead and confiscate gaming devices for people who are sponsoring gaming illegally in Connecticut and that was really meant for folks who decide to set up slot machines in their homes or in their businesses. There really is a legal point here as to whether or not a domain name is a gambling device. There’s a second issue here around poker and whether it’s gambling, a game of chance, something that happens between two people or a number of people. So there are a number of issues to be resolved and all these arguments are being made. I am actually really grateful for the delay in the court case, because it gives us as an activist based website some additional time to mobilize and educate them about what this means to their ability to operate businesses, to educate them about what it means to their ability to access information online without the interference of government. So I’m actually pretty grateful for the delays in the case, and think that as more and more people find out what’s gone on here, they’re just outraged. And, you know, a number of people have commented and signed a petition and said, you know, this is un American. How could this happen here, and I think that’s the million dollar question is how can this happen here and it’s real easy I think for us to say well it’s a domain issue or it’s an online gaming issue. Well it’s not. Any business you start today now becomes vulnerable to some governor, or even somewhere else in the world somebody is saying you know what I think that your website violates local law, I want your domain name. I don’t care what it’s worth. I want it and I’m going to take it. So it really sets things up to set us back when it comes to ecommerce and it’s just amazing that a governor would take these steps. So that’s where the court case sits now. A lot of briefs going back and forth. A lot of really hard work going into this, and we think kind of the next news in the case will be sometime in December.
DAMIEN: Alright, besides IMEGA and the gaming, and of course, the domain owners, who else is involved in fighting this? You’ve got the governor saying this, is there pro and con, who else is in this circle beating this issue?
JEFF: Those are the main organizations who are leading the charge against the governor. I’ve been a little bit surprised, honestly, that neither the Kentucky chapter of the ACLU has weighed in, and I’ve actually written to them asking them why without receiving a response. I’m also a little surprised that EFF the Electronic Frontier Foundation has jumped in to this at this point in time. I think as more groups find out about it, they will jump into this. I don’t see a whole bunch of folks coming out on the other side to say that what the governor is doing makes sense. I think a lot of folks have reservations about it, a lot of folks question whether or not this is a viable case on his part, and the real test for us is every day, average citizen who hears about this is blown away at how this could happen. So honestly I think this is a fight that happens through lawyers and court rooms, but also through public opinion to send a message to Governor Beshear that this is not acceptable and to put his other colleagues on notice across the nation that this is not ok for a governor or any elected official to do.
DAMIEN: Now you’ve launched www.boycottkentucky.com after these domains were seized and it appears that you’re asking people to stop doing business with Kentucky and Kentucky companies to voice their displeasure of the action. Why are you asking for a boycott and what are you hoping to achieve?
JEFF: Well boycotts have a long history in this country in terms of political pressure, in terms of activism, and you know, I’m all for writing letters to the governor, and we organized the phone zap on Halloween to tell him his actions were down right scary. I would like to see more Kentucky based businesses jump into this and say, hey look this is just anti-business and anti-competition and it’s anti-American. The hope is by putting some pressure on these companies, raising their awareness, they’ll waive in with the governor and say, hey look this just doesn’t make since. I think it’s one thing to have online casino owners weigh in and say this is wrong; it’s quite another thing for somebody like Yum brands or the bourbon industry to weigh in and say hey look, you know, you’re not shutting us down, but we realize that we could potentially be next and this is not ok. I really didn’t know a lot about Kentucky before we jumped into this, and I’m amazed really at the hypocrisy in that, you know, the governor is out there saying hey look I’m going to protect kids and families and meanwhile it’s the junk food capital of the world, it’s the bourbon capital of the world, it’s the horse racing capital of the world. It smacks of hypocrisy in a way that I haven’t seen before and like I said I think really this is a critical case in terms of the ability for ecommerce to move ahead.
DAMIEN: Who’s most likely affected by this decision beyond the obvious registrants of the seized domains?
JEFF: I think any business. At this point in time if you were going to start any business on line, you would have to go and check with every municipality and say, is what I’m doing ok? And any time anybody changes their mind, you would potentially be out of business. I think the key here is the internet was founded on a universal set of principals and one of them is that nobody particularly owns the internet and that no small state governor can come in and say no you’re not going to do this and it really does run counter to some of the ideals that were set up in the early days of the internet and online commerce and really strikes to the heart of censorship issues. So yeah, I think the most immediately affected are domain name owners, those who operate casino gaming sites, but it’s not a stretch and I don’t think it’s hyperbole to say well who is next down the line? Yeah, I think adult site operators are next down the line, but how about social networking sites? How about dating sites? Where exactly do we draw the line and say we’re government and we know better than you, and we don’t think you should be looking at this content or engaging in these activities in your own living room.
DAMIEN: This is definitely turning out to be a far sweeping case. You’re personal rights, your business rights, the ability to conduct yourself online as a business and if the trickle down theory which we see works quite well once the government gets their hand into something, you know, this seems to be pointing out some far reaching ramifications in the very near future. We thank you very much for spending time with us today and educating us on the domain seizures and on www.boycottkentucky.com. Thank you very much, Jeff.
JEFF: Thanks so much for having me on. I certainly appreciate your willingness to help get the word out about this really important issue. Thanks again.
DAMIEN: Well I have a feeling we’ll be speaking to you again very soon to get an update on this.
DAMIEN: Have a great day, and you've been listening to the Traverse Legal Radio Tech Spotlight. I am Damien Allen here in the studio. We will catch you next time. Have a great day. ANNOUNCER: This spotlight is powered by vertio.net. Vertio Talk Radio, talk radio for the 21st century.