[Again, most court decisions lead to Hebrew links, sorry, originally posted in Hebrew]
A Kentucky Court ordered, in a wrong and misunderstood decision, to forefeit one hundred and forty one domains which were somewhat involved in gambling into the hands of the State of Kentucky. In the decision, granted by the Kentucky Circuit Court, asserted that since the domains were accessible to Kentucky residents, they could be seen as operating illegal gambling in Kentucky (and therefore asserting jurisdiction) and they could be forfeited in order to stop the plague. (81-CI-1409 Commonwealth of the State of Kentucky v. 141 Internet Domain Names) (and see also the Carlton Case CR 90861/07 Michael Gary Carlton v. Israeli Police and Dr. Omer Tene‘s explanation on Carlton)
In order to understand how essentially wrong is the decision, one must understand the forfeiture process (and the court dedicates a full chapter to this). Forfeiture is a semi-civil process where property involved in a crime is conveyed to the hands of the state as the property itself was a part of the criminal process. Forfeiture is not only penal, it is intended to grand a deterring force and prevent a person’s enjoyment of criminal profits. Moreover, the state cannot forfeit property if there’s no hard evidence (and sometimes beyond reasonable doubt) that a crime was made with the property. (CA 4496/04 Majahna v. State, CA 7155/01 Tzameret Billiard Clubs, ltd v. State).
After the court reviews the relevant decisions, it comes to a conclusion that, not only a domain is property per se (and some lawyers claim differently) (see also
how a domain could be foreclosed in Israel, decent disclosure: I wrote some of the court request for Adv. Idan Lamdan). But the court also asserted that the property is no less a part of the crime committed.
This is where my criticism starts to come to action. First, the Defendants and due process; please note the parties’ identity in the court decision, they are one hundred and forty one domains (and not domain owners). As you’ll never see a forfeiture case titled “The State of Israel v. a money pack left by a homeless drug dealer”, you can see the problem here. Therefore, conducting a process against a domain owner (with or without his knowledge) where he is not a party to the discussion cannot be deemed as due process. There’s a similarity between this case and the Israeli Supreme court when Prime Minister Yitzhak Rabin deported 415 prisoners to Lebanon without granting them the right to be heard (audi alteram partem); then, the court gave a unanimous, unsigned decision in a funny manner (HCJ 5973/92 Israeli Civil Rights Assoc. v. Minister of Defense)
Second, it is unclear whether any crimes were actually committed (and compare the “Making Available” reasoning in the Jamie Thomas appeal, 06-1497 Capitol v. Thomas, …). In principio, the state of Kentucky failed to prove that even one person gambled or waged money in each and every one of these websites, it did not prove that funds were transferred and where were they transferred to, it just submitted a negligent request. Meaning, if we compare the domain forfeiture to laundered money, then we did not prove (and especially not beyond any reasonable doubt) that the domains were involved in gambling. As some of the Amici Curiae claimed, some of the domains were no more than spam links or link farms, which cannot be deemed as illegal.
Third, the judge showed ignorance in understanding the poker game when he stated that “in the end, no matter how skillful or cunning the player, who wins and who loses is determined by the hands the players hold”. This shows misunderstanding of the poker process when it misses the basic assumption of the game’s psychology: you play the hand you want, not the hand you have.
Poker could be easily compared to the legal process. As most court cases end in some kind of settlement, and seldom do people get a final decision, so do most poker rounds. Poker players, at least most of the time, aren’t required to show their cards and therefore these cards mean nothing. Like lawyers, poker players play the cards they’re dealt. A lawyer who first hears a potential client can decide whether he takes the case or not according to the chances he assumes; this is quite similar to being dealt a Pocket hand. Afterward, the lawyers start exchanging accusations and letters, where the lawyer could decide to quit or go ahead (pre-flop gambling) depending on his assumption of the other player’s odds and power. Then, the game begins, the flop is being dealt and lawyers start document discovery and pre-trial, where every party tries to bully the other and show him how weak his case is, convincing him to quit. Then, if they remain in the game, comes the real trial and the closing arguments (Turn and River), in any stage, even after the closing arguments, each party could offer (or bully) such offer that will cause the other party to stop. But in the ends, when people show cards, it’s all over and it’s left with the odds. (see Hon. Judge Rachel Greenberg‘s dissenting opinion in Crim 3814/07 State v. Rock Eran).
Now, in some cases, being a good enough lawyer doesn’t really help. Sometimes, your client is a murderer, rapist, thief or just did illegitimate acts in a civil suit. Does that mean you’re not a good enough lawyer? no, it means your client wasn’t good enough. If so, is litigation a wager? Not really, it’s life.
If we leave the sidenote on poker and legal procedure, that I’m still considering legitimate (otherwise, there’s no difference between Poker and the financial market), the question of Due Process was entitled to a more serious discussion. It is not possible that the state of Kentucky decide to forfeit all one hundred and forty one domains without these being under its jurisdiction. The net’s internationalization cannot allow a jurisdiction anything but to reign over it’s physical domain, if not, we might get this website forfeited in Syria, the law is no more than a weapon of mass destruction when put in the hands of the wrong state.