Intellectual Property Law

Minnesota Backs Down

By Tim Armstrong, Derek Bambauer, and William McGeveran.

Minnesota’s Department of Public Safety has withdrawn its effort to compel the state’s ISPs to filter ~200 gambling Web sites, in the face of a lawsuit filed by iMEGA. State officials are maintaining a brave (poker) face, along with some bad analogies - they claim not to have “folded their hand.”  John Willems - the nominal defendant in the suit as director of the Alcohol and Gambling Enforcement Division - said “Whether or not iMEGA ultimately would have prevailed in court is unknown.” Technically true. But, in poker terms, the Department had a pair of twos, and iMEGA had a flush. Allow me to quote Kenny Rogers:

You got to know when to hold em, know when to fold em,
Know when to walk away and know when to run.

The department wisely ran.

The complaint in the lawsuit makes for interesting reading. First, I’m depressed that a complaint still has to describe the Internet. Second, iMEGA rightly argues that ISPs are not common carriers, and hence not subject to the Wire Act’s demands about leasing, furnishing, or maintaining a facility whereby gambling information is transmitted. (See 18 U.S.C. 1084(d).) Third, I think it’s undesirable to have states making content blocking decisions, especially ones that apply to national and international carriers - it has the risk of increasing access costs, and of leading to overblocking if providers want to reduce those costs. (Cheaper and simpler to block a site for everyone than to differentiate by geographic location.)

But the neatest, and most brilliant, part of the complaint is that it throws Minnesota between Scylla and Charybdis: if ISPs block gambling sites by fully-qualified domain name or IP address, they’ll prevent access to lawful information (such as a history of blackjack) protected by the First Amendment - but if they block at a deeper level, such as individual URLs, it’ll be under-inclusive. This is clever, probably accurate, and diabolical. It points out the flaws in filtering: either it’s easily evaded, or it’s going to sweep up content that is permissible. The First Amendment frowns on both.

I don’t know why Minnesota started down this path. My intuition is that there’s either a norms-based goal, or a political one. The norms-based goal would be to signal Minnesota’s disapproval of on-line gambling. The political one would be to advance someone’s career by appearing to tackle (mostly out-of-state) gambling interests, even in a losing battle. (Battle of Thermopylae metaphor, anyone?)

Prediction: there will be more state-based filtering efforts, and soon. Pick your targeted material: a) child porn, b) terrorism materials, c) gambling, or d) “obscene” content. Any bets?

Hat tip, and serious props, to my colleague Karen Schneiderman for great research following this case…

Full post as published by Info/Law on June 09, 2009 (boomark / email).