ICE seizure of bodog.com causes international concern

Visitors to bodog.com are now shown this image.

The federal government's "Operation Our Sites" has been used to seize nearly 1,000 domain names in the past few months - most of which were for websites used to illegally stream sports events and television shows. An Immigration and Customs Enforcement spokesperson recently told Threat Level that ICE "has the right to seize any .com, .net and .org domain name because the companies that have the contracts to administer them are based on United States soil."

Canadian-registered domain name Bodog.com, a website for an online gambling site, had its domain seized just last week, causing concern among many non-US companies using .com domains. American company VeriSign controls the .com TLD, allowing the US government to seize any .com domain.

Bodog began operating under the name Bovada in July 2011. Their new website, www.bovada.lv, is registered under Latvia's TLD. Their original website is still available under its IP address, 66.212.249.92, but American users are quickly told that their "funds are still accessible" on Bovada's website. Bodog's founder, Calvin Ayre, and others have been indicted for illegal gambling and money laundering.

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ICANN to create additional top-level domains

A Senate committee has asked ICANN to slow the release of new top-level domains (TLDs). ICANN is a nonprofit organization that handles Internet domain name issues.

A top-level domain is the last part of a domain name, as shown here:

Many TLD's exist now - .com, .gov, .org, .edu, .biz, etc. In the past, these limits have forced some businesses to get less desirable domain names because their desired .com was already taken.

The organization has recently considered loosening restrictions on TLDs, which might open up many new options directed at specific business types (.hotel) or a specific city (.london). Another proposal would allow a company to purchase their own TLD at a cost of $185,000. Adding more TLDs allows a business to find more ways to distinguish itself. For example, if a San Francisco business named "Jim Bob's Burger Shack" wanted the .com, but it was already taken by a New York restaurant, it would be out of luck. But if San Fran got its own TLD, they could get jimbobsburgershack.sf.

One of the many problems with this has shown up with the new .xxx TLD, discussed here in a previous post. Many businesses and other institutions have feared that pornographic websites will show up at a domain related to them. For that reason, many universities have spent thousands of dollars reserving domain names like www.KUnurses.xxx or www.hoosiers.xxx. Click here for recent commentary on the .xxx TLD from Mashable and here for CNN commentary.

Despite these issues and the senators' pleas, the new policies may begin as early as January 2012.

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Two domains, one folder: Prosecution can bring two charges

The Sixth Circuit recently held that a hosting account having two domain names directed to it allowed the defendant to be charged with two counts of transportation of child pornography (and therefore was not multiplicitous or a violation of double jeopardy).

In United States v. Richards, 659 F.3d 527 (6th Cir. 2011), Richards argued that because all of the data was located in the same folder, it was irrelevant whether he had two distinct domain names. The court noted, "the sites could have operated at the same time and drawn different images from the same folder because they were on different domains."

While that is certainly the case, the domain name should not be the key here. Even if only one domain name existed, it could have been accessed on multiple computers and "drawn different images from the same folder." The domain names are irrelevant. If a person were to register a hundred domain names for one website, they should not automatically be subjected to a hundred counts. Rather, the approach would vary using the court's citations from other circuits.

• United States v. Schales, 546 F.3d 965, 979 (9th Cir. 2008) - “[W]here a defendant has stored sexually explicit images in separate mediums, the government may constitutionally charge that defendant with separate counts for each type of material or media possessed.” To apply Schales to Richards, there should only be one count. It was saved in one single medium. Though it could have been accessed through different domain names does not change the medium.
• United States v. Gallardo, 915 F.2d 149, 151 (5th Cir. 1990) (“With respect to the child pornography statute [18 U.S.C. § 2252(a)(1)], each separate use of the mail to transport or ship child pornography should constitute a separate crime." Under this standard, Richards should have been charged a different count for each visit to the site and access of the files.

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