Minnesota Faces Tough Odds in Limiting Online Gambling

diceJoining Kentucky in an attempt to stop online gambling, authorities in Minnesota have asked Internet service providers to block access to hundreds of gambling-related Web sites.

But as in Kentucky, lawyers say that the Minnesota effort is likely to face significant hurdles.

John Willems, director of the Alcohol and Gambling Enforcement
division of Minnesota's public safety department, recently requested
that 11 ISPs, including Comcast, Charter and Verizon Wireless, prevent state residents from reaching around 200 gambling sites.

"Our only goal is to deal with online gambling," Willems said. "We're not trying to shut down the sites, we're not trying to seize assets." Willems based his request on a federal statute that allows law enforcement officials to demand that common carriers stop transmitting gambling information.

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But that approach appears to be problematic for several reasons, according to John Morris, general counsel for the digital rights group Center for Democracy & Technology. The first is that Internet service providers -- whether cable companies or telecoms -- are not currently considered common carriers.

The U.S. Supreme Court ruled in 2005 in that cable companies offering broadband aren't acting as common carriers but as "information service" providers. Shortly after that decision, the Federal Communications Commission said DSL was also an "information service," meaning that telecoms' broadband services are not subject to common carrier rules.

In addition, the action is likely to have repercussions that extend beyond Minnesota, and therefore potentially violates the constitutional prohibition on state laws that hinder interstate commerce.

While Willems has only asked the companies to block access of Minnesota residents, many observers say that's not possible -- at least not with 100% accuracy.

In addition, says Morris, even if such technology existed, ISPs would find it burdensome to attempt to block access on a statewide basis. "These are national networks, constructed and configured on a non-state-by-state basis," Morris said.

In a similar case, Morris led a successful legal effort to defeat a 2003 Pennsylvania law mandating ISPs to disable access to sites with child pornography. In that instance, a U.S. district court judge threw out the law for several reasons, including that technical limits would have resulted in the blocking of legitimate Web sites.

Willems says the Minnesota measure is merely the latest action in the state's 15-year campaign to stop online gambling. In the early 1990s, the state attorney general successfully argued that online gambling
sites violated state consumer fraud laws.

Minnesota isn't the only state to tackle online gambling. An appellate court in Kentucky recently rebuffed an effort to shutter out-of-state gambling sites. There, the state attempted to seize the sites' domains under a law that provides for forfeiture of gambling devices. But an appellate court ruled that a Web site is not a gambling device. The Kentucky Supreme Court is currently considering the state's appeal.

At the national level, Unlawful Internet Gambling Enforcement Act, passed in 2006, prohibits banks and credit card companies from sending money to online gambling sites. But Rep. Barney Frank (D-Mass) has said he intends to introduce legislation to legalize and regulate online gambling.

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