Why Minnesota’s Action Today May Not Work

According to a press release today, The Minnesota Department of Public Safety (DPS) Alcohol and Gambling Enforcement Division (AGED) served written notice to 11 national and regional telephone and Internet service providers (ISPs) instructing them to prohibit access of all Minnesota-based computers to nearly 200 online gambling websites.

Written notice was served to AT&T Internet Services, San Antonio; Charter Communications, St. Louis; Comcast Cable, Moorestown, N.J.; Direct TV, Los Angeles; Dish Network, Englewood., Colo.; Embarq and Sprint/Nextel, both of Overland Park, Kan.; Frontier Communications, Stamford, Conn.; Qwest, Denver; Verizon Wireless, Bedminster, N.J.; and Wildblue Communications, Greenwood Village, Colo.

“We are putting site operators and Minnesota online gamblers on notice and in advance,” says John Willems, director of AGED. “Disruption of these sites’ cash flow will negatively impact their business models. State residents with online escrow accounts should be aware that access to their accounts may be jeopardized and their funds in peril.”

Believed the first attempt by a state to employ this federal statute to restrict access to online gambling sites, the letters cites U.S. Code, Title 18, Section 1084, (d); notices were delivered Mon., April 27. Congress enacted the statute in 1961 in recognition of the need for states to control illegal gambling activities and granted authority for use of the statue to state law enforcement agencies.

Response from the notified ISPs is expected within two to three weeks, at which time issues of non-compliance will be referred to the Federal Communications Commission (FCC). Acknowledging the effort as an initial sample, Willems anticipates the program expanding to address thousands of sites, depending on compliance. He notes that the required technology to restrict geographic access to particular sites is a relatively straightforward procedure on the part of service providers.

However according to John Morris, general counsel at the Center for Democracy and Technology in Washington, this attempt by Minnesota will not work.

Why?

The state is citing a federal law that requires “common carriers,” a term that mainly applies to phone companies, to comply with requests that they block telecommunications services used for gambling.

But Internet service providers are not common carriers, meaning it’s unlikely that a court would compel an ISP to comply with Minnesota’s request, said Mr. Morris

Mr. Morris, also noted that the law appears to apply to phone companies directly doing business with bet-takers. But American restrictions on online gambling have already forced gambling sites overseas, where U.S. ISPs have no direct links to them.

“I think this is a very problematic and significant misreading of the statute,” Morris said.

Moreover Morris says that in a similar case, Pennsylvania briefly imposed requirements for ISPs to block child-pornography sites. A federal court struck down the law in 2004 because the filters also blocked legitimate sites and affected Internet subscribers outside the state.