Graves Concerns

Minnesota’s Department of Public Safety has sent letters to eleven large ISPs, instructing them to block about 200 online gambling sites. The DPS’s requests are problematic on a number of fronts.

First, the DPS relies on 18 U.S.C. § 1084(d) for its authority. That section gives law enforcement the ability to have phone companies disconnect services used for illegal gambling. The actual language is more complicated than that, of course: there’s a notice requirement before take-down, the alleged gambling operation can still fight the order in court, and it applies not just to phone companies but to any common carrier. And there’s the first problem: ISPs aren’t common carriers. Things might be simpler if they were—the whole “net neutrality” debate would be mostly moot, for starters. But they aren’t. By its plain language, § 1084(d) doesn’t apply to them.

Even if it did apply, there’s another textual problem. The statute says the common carrier must “discontinue or refuse, the leasing, furnishing, or maintaining” of the facility it provides. In short, the common carrier can disconnect its customer. But none of the 200 online gambling sites are likely to be located in the U.S., much less on the ISPs’ networks, so they can’t just disconnect them. That’s why the DPS wants the ISPs to block the sites. But the statute the DPS relies on doesn’t authorize blocking, only disconnection.

One could argue that blocking is merely a less disruptive form of disconnection, but I think that argument should fail. A disconnection order presents straightforward questions of jurisdiction (i.e., is the customer someone the state can tell the common carrier to disconnect?), but those questions are more complicated when blocking sites that aren’t in the country. Because blocking is done by IP address, it’s likely to harm innocent web sites that share the same infrastructure; that’s less of a risk with disconnection. Finally, blocking, unlike disconnection, does not require any relationship between the ISPs and the blocked addresses. A disconnected customer knows he’s been disconnected (even without the notice requirement), and knows who to complain to (and, if necessary, sue for reconnection). If eleven ISPs block a website, the website owner would have to persuade or sue all eleven of them to get them to stop. In short, the mechanics and impact of blocking are quite different from disconnection, and shouldn’t be covered under the same term.

The Minnesota request looks clumsy compared to the New York Attorney General’s similar efforts to have ISPs block child pornography sites. The New York AG wisely tried to avoid problems with state restriction of speech by asking ISPs to block sites voluntarily, with only the subtlest hint that things would not be so pleasant if ISPs refused. But Minnesota came right out and said it: “we are the state, and we’re telling you to do this.” So there’s no question that it’s state action; now the only question is whether it’s unconstitutional. Why would the state do that, when some ISPs have shown that they’re willing to block sites voluntarily?

New York’s AG also made another smart choice: it picked on child pornography, not online gambling. You won’t find many people to defend child pornography, but online gambling has lots of proponents, including the Interactive Media Entertainment & Gaming Association, who just got a new pet cause, and Congressman Barney Frank, who will be introducing legislation to repeal the current three-year ban on online gambling. By targeting gambling, Minnesota ensured that the blocking won’t happen without a fight.

Minnesota seems to be rushing into a battlefield already strewn with the bodies of other would-be blockers. Kentucky’s attempt to take over online gambling domain names was blocked (it’s appealing the decision). In 2002, Pennsylvania tried to force ISPs to block sites with child porn, but that law was struck down as unconstitutional. Interestingly, a remnant of an early failed attempt to regulate Internet speech—the Communications Decency Act—shields ISPs from being held liable for content carried over their networks. With so many failed attempts in the past, it’s no wonder Minnesota had to look to a novel theory of law.

Still, I think the state would have had much less trouble—and as much or more success—if it had followed New York’s lead and just asked nicely.

Update, 5/5/09:I got confused on my voluntary ISP agreements. Qwest’s agreement was with the National Center on Missing and Exploited Children; New York’s Attorney General doesn’t seem to have been involved. New York convinced several ISPs to voluntarily remove some Usenet newsgroup hierarchies, which is a different matter entirely.