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Free Expression

Odds are Stacked Against Minnesota’s Bet on Web Blocking

Recently, the Minnesota Department of Public Safety sent a seven-page list of off-shore gambling websites to 11 ISPs demanding that all access to those sites by state residents be blocked. This misguided action by the MDPS to scrub the Internet of websites it objects to is purportedly based on Federal law. The law cited in the letters, however, doesn’t apply to ISPs or their customers’ access to remote websites. More broadly, like Kentucky’s recent attempt to seize domain names, this kind of state interference with the Internet raises substantial constitutional concerns.

The state’s letter cites a Federal law known as the Wire Act, which requires common carriers subject to FCC jurisdiction to cease offering telecommunications facilities to any subscriber using such facilities to transmit or receive gambling information. The request misinterprets the statute in at least two ways. First, Internet services have historically been “information services” not covered by common carriage rules, and over the past ten years the FCC has held (for better or for worse) that neither cable nor DSL ISPs are common carriers. Therefore, common carriage – and the Wire Act along with it – does not apply to Internet service providers.

Second, Wire Act was intended to prevent common carriers from providing telecommunications facilities to customers who are themselves providing gambling services; the Act simply was not meant to cover any and all communications moving over a carrier’s network. There’s a smart bet that the hosts of these sites, all located outside the U.S., aren’t subscribers of Minnesotan ISPs. (One more hair to split: the Wire Act applies specifically to sports betting, which many of the sites listed – for example – don’t provide.)

Beyond these particular details, this kind of demand by a state government raises serious constitutional concerns. Much like Pennsylvania’s unconstitutional attempt to filter Internet content a few years ago, Minnesota’s would run into First Amendment problems. In that case, CDT showed that website blocking by the state would be dramatically overbroad. Requiring that ISPs block URLs and/or IP addresses, as implied by the Minnesota blacklist’s inclusion of each, would almost certainly censor legitimate speech. Many of the sites contain legal content beyond its more objectionable offerings, such as news or discussion forums, and the sites’ content could change over time. More importantly, many websites share IP addresses; one commentator has already pointed out at least one site offering no gambling services that would be inadvertently swept into Minnesota’s net via IP-based blocks. Consequently, blunt blocking as demanded by Minnesota’s letter would include huge amounts of protected speech.

Additionally, the Internet is a global medium for communication and commerce, and thus rightly reserved under the Commerce Clause of the U.S. Constitution for federal – not state – regulation. In a very similar case currently before the Kentucky Supreme Court, CDT and others argued that the state should be barred from seizing domain names associated with gambling sites, in part because of the example it would set and the chaotic morass of regulations that would follow. Imagine the implications if a more repressive government were to impose its standards with a broad brush across the entire Internet. Jurisdiction on the Internet is a tremendously difficult problem, but it’s clear that an Internet in which local jurisdictions could impose demands and restrictions on service providers all over the world (or even in other states in this country) would be crippling to free expression and innovation in online services.

Because of the threat to free expression and the openness of the Internet as a platform for innovation, CDT believes that states have no business interfering with interfering with Internet communications in the way Minnesota proposes. The fight will continue; the request has been challenged in court, and it seems at least one Minnesota legislator agrees with CDT.