Three US organisations that support the concept of freedom of the Internet, the Electronic Frontier Foundation, the Center for Democracy and Technology and the American Civil Liberties Union, this week urged a Kentucky Court of Appeals to vacate a lower court's order authorising the seizure of more than 100 Internet domain names associated with websites operating around the globe.
The seizure , and the lower court's exercise of jurisdiction over global domain names, threatens free speech across the Internet, a spokesman for the three groups said.
In its amicus brief filed with the Court of Appeals in support of a writ vacating the judge's order, EFF, CDT, and the ACLU argue that the First Amendment, the Commerce Clause, and the Due Process Clause of the Constitution prohibit state courts from interfering with Internet domain names that were registered and maintained outside the state. The brief argues that the seizure order was invalid because it threatened to impede access to a broad range of materials protected by the First Amendment.
"The court's theory – that a state court can order the seizure of Internet domain names regardless of where the site was registered – is not only wrong but dangerous," said EFF Senior Staff Attorney Matt Zimmerman. "If the mere ability to access a website gives every court on the planet the authority to seize a domain name if a site's content is in some way inconsistent with local law, the laws of the most world's most repressive regimes will effectively control cyberspace."
As part of his ruling, the judge in Kentucky held that the domain names could be seized if they refused to implement "geographic blocks" to prevent Kentucky users from accessing the material. However, no such reliable filters exist, and even poor ones cost thousands of dollars, Zimmerman added. And any order requiring their use would unconstitutionally burden First Amendment rights.
"If the Kentucky order is upheld, no speech that conflicts with any law, anywhere in the world, would be safe from censorship," said John Morris, general counsel for CDT. "Just as Kentucky is trying to take down sites located around the world, any government seeking to stifle free expression could try to interfere with lawful speech hosted in the United States."
"A key free speech principle that has emerged from Internet litigation is this: Governments may not prohibit all access to websites as a remedy for unlawful behavior," said David Friedman, ACLU of Kentucky General Counsel.
For the full amicus brief: