The state of Minnesota has handed Internet providers a 7-page blacklist (PDF) of gambling Web sites that they're supposed to prevent customers from accessing, a move that raises First Amendment and technical concerns.
"We are putting site operators and Minnesota online gamblers on notice and in advance," said John Willems, a Minnesota Department of Public Safety official, in a statement. Companies that received the list of off-limits Web sites--which was made public on Thursday--include AT&T, Comcast, Qwest, and Sprint/Nextel.
The Department of Public Safety's letters to the Internet providers say that "gambling is illegal within Minnesota" and claim that a federal law "requires upon notice by a law enforcement agency that you do not allow your systems to be used for the transmission of gambling information."
Federal law says that a "common carrier" must "discontinue or refuse, the leasing, furnishing, or maintaining" of any service if it's being used to transmit gambling-related information. (The U.S. Supreme Court and the Federal Communications Commission, however, have suggested that neither cable providers nor DSL providers are "common carriers.")
Joe Brennan of the Interactive Media Entertainment and Gaming Association in Washington, D.C. said on Thursday evening that his group just found out about the blacklist and is consulting with First Amendment attorneys to evaluate its options.
Minnesota's move echoes what happened in Pennsylvania about six years ago. The Keystone State enacted a law permitting the state attorney general to deliver orders to Internet providers telling them to block possibly illegal Web sites.
But a federal judge in Philadelphia struck down the law in 2004 on First Amendment grounds, saying: "There is little evidence that the act has reduced the production of child pornography or the child sexual abuse associated with its creation. On the other hand, there is an abundance of evidence that implementation of the Act has resulted in massive suppression of speech protected by the First Amendment."
One reason the law failed to survive the court challenge was because of the way the modern Web is designed. Because many Web sites can share one Internet Protocol (IP) address, blocking the IP address makes the entire list of sites inaccessible. (An expert report prepared for the trial says that out of over 20 million .com, .net, and .org domains, over two-thirds of the sites shared an IP address with at least 50 other Web sites. In many cases, Web sites shared an IP address with thousands of other sites.)
Minnesota's efforts may suffer from the same overbreadth problem. Its blacklist includes GetMinted.com, a gambling site with an IP address listed of 18.104.22.168.
Sharing that IP address is another site called Cashcade--a domain devoted not to a virtual casino, but to a parent company's corporate site, with a product list and hyperlinks to a gambling news Web site that it owns.