Furor Over Minnesota’s Blacklist on Online Sites Continues

Legal experts who practice their trade in the online world say Minnesota Department of Public Safety’s recent effort to block statewide access to online poker sites betrays a naiveté about both the workings of the Internet and the U.S. Constitution.

The State of Minnesota recently alerted 11 Internet service providers (ISP’s) that they must halt access to 200 online gaming sites. Most sites offer poker, but some offer horse race betting and bingo. But foremost on the list of questions raised by the state’s action is whether ISP’s are even covered by the law cited in the Minnesota Department of Public Safety’s announcement.

“Even before you get to the constitutional concerns, there’s some pretty glaring problems,” said John Morris, General Counsel for the Center for Democracy and Technology.

In 1961, Congress gave a young U.S. Attorney General named Robert F. Kennedy the power to go after bookmakers through the Interstate Wire Act, which banned the use of telephones for betting.

But in recent years, there has been a healthy debate about whether the Wire Act applies to online gambling. Minnesota’s Department of Public Safety while announcing its move on 29th April 2009 acknowledged that it was probably the first time a state had used the Wire Act to target poker sites.

John Willems, Director, the Division of Alcohol and Gambling Enforcement said, “We are putting site operators and Minnesota online gamblers on notice and in advance”.

“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.”

But the Wire Act itself refers to “common carriers” — telephone companies, railroads and others required to rovide services to customers who request them. Internet providers, Morris said, are most definitely not common carriers.

This is one of the main claims in a lawsuit filed against the State last Wednesday by the New Jersey-based Interactive Media Entertainment and Gaming Association.

The State has additionally requested ISP’s to block access based on numerical Internet protocol addresses. But many Web sites share the same IP address, meaning that blocking access to one poker site could result in the blocking of hundreds of unrelated sites.

Furthermore, while the Department of Public Safety said blocking only Minnesota residents’ access to these Web sites is “relatively straightforward,” Morris and others said it is not. The lawsuit alleges that available technologies do not permit such geographic distinctions.

Companies such as DirecTV, said they don’t provide Internet access. “We’re not sure why we were included on the state’s list,” DirecTV spokesman Robert Mercer wrote in an e-mail.

The list of potential problems continues. For example, it’s not clear the Wire Act applies to poker, or even online casino games, though it certainly applies to sports betting.

In 2002, the 5th U.S. Circuit Court of Appeals agreed that “the Wire Act concerns gambling on sporting events or contests” and not poker or other games. The U.S. Justice Department has disagreed with the court.

Lastly, the state’s position violates the First Amendment when it comes to some of the sites offering lessons on playing Texas Hold ‘em or the history of casinos.

Written for Internet Poker by Joy