IP: Minnesota Attorney General's Memo [know anyone in Mn -- be

[Dave Farber <farber () central cis upenn edu>]

Posted-Date: Mon, 20 Nov 1995 09:21:27 -0500
Date: Mon, 20 Nov 1995 06:21:32 -0800
From: Kenn Guernsey <guernseykl () cooley com>
To: farber () central cis upenn edu
Subject:  Minnesota AG's Memo


Minnesota rattles the sabre at net gambling organizations, Minnesota net
gamblers and ISPs:




 WARNING TO ALL INTERNET USERS AND PROVIDERS


THIS MEMORANDUM SETS FORTH THE ENFORCEMENT POSITION OF THE
MINNESOTA ATTORNEY GENERAL'S OFFICE WITH RESPECT TO
CERTAIN ILLEGAL ACTIVITIES ON THE INTERNET.


PERSONS OUTSIDE OF MINNESOTA WHO TRANSMIT INFORMATION VIA
THE INTERNET KNOWING THAT INFORMATION WILL BE DISSEMINATED
IN MINNESOTA ARE SUBJECT TO JURISDICTION IN MINNESOTA COURTS
FOR VIOLATIONS OF STATE CRIMINAL AND CIVIL LAWS.


The following discussion sets out the legal basis for this conclusion.


Minnesota's general criminal jurisdiction statute provides as follows:


A person may be convicted and sentenced under the law of this State if
the person:
(1) Commits an offense in whole or in part within this state; or
(2) Being without the state, causes, aids or abets another to commit a
crime within the state; or
(3) Being without the state, intentionally causes a result within the state
prohibited by the criminal laws of this state.


It is not a defense that the defendant's conduct is also a criminal offense
under the laws of another state or of the United States or of another
country.  Minnesota Statute Section 609.025 (1994).


This statute has been interpreted by the Minnesota Supreme Court.  In
State v. Rossbach, 288 N.W.2d 714 (Minn. 1980), the defendant
appealed his conviction for aggravated assault.  The defendant, standing
inside the border of an Indian Reservation, had fired a rifle across the
boundary line at a person outside the border.  The defendant claimed that
Minnesota courts did not have jurisdiction because his act took place off
of Minnesota lands.  Applying Minnesota Statute {609.025 and the
common law, the Minnesota Supreme Court affirmed the conviction,
holding that the intentional impact within Minnesota land created
jurisdiction.  Id. at 715-16.


The Minnesota Court of Appeals reached a similar result in State v.
Brown, 486 N.W.2d 816 (Minn. Ct. App. 1992).  In Brown, the court
implicitly found that Minnesota courts had criminal jurisdiction over
individuals in Iowa who mailed unlicensed gambling equipment to
Minnesota residents.  Id. at 817-18.


Minnesota courts have applied similar jurisdictional principles in civil
cases.  In State v. Red Lake DFL Committee, 303 N.W.2d 54 (Minn. 1981),
the Minnesota Supreme Court held that state courts had jurisdiction over
a committee of the Red Lake Indian Tribe which had purchased space for
political advertisements in a newspaper circulated in the state.  At issue
was whether the committee had to register under state ethical practices
laws.


The committee argued that it had done nothing outside of the reservation,
since the transaction with the newspaper took place inside the
reservation, and the committee did not assist in the circulation of the
newspaper.  In holding that the committee was required to register under
state ethical practices law, the Supreme Court responded to this
argument as follows:


Defendants say nothing they did occurred outside the reservation, but
they choose to ignore that what they did caused something to occur
beyond the reservation boundaries, namely, the dissemination of a
political message, which is the activity here sought to be regulated.  Id. at
56 (emphasis added).


The above principles of Minnesota law apply equally to activities on the
Internet.  Individuals and organizations outside of Minnesota who
disseminate information in Minnesota via the Internet and thereby cause a
result to occur in Minnesota are subject to state criminal and civil laws.


An Example Of Illegal Activity On The Internet -Gambling


Gambling appears to be an especially prominent aspect of criminal
activity on the Internet. There are a number of services outside of
Minnesota that offer Minnesota residents the opportunity to place bets on
sporting events, purchase lottery tickets, and participate in simulated
casino games.  These services are illegal in Minnesota.


Lotteries


A lottery is defined as "a plan which provides for the distribution of
money, property or other reward or benefit to persons selected by
chance from among participants some or all of whom have given a
consideration for the chance of being selected."  Minnesota Statute
Section 609.75, Subdivision 1(a) (1994).


Generally, it is unlawful in Minnesota to sell or transfer a chance to
participate in a lottery. Minnesota Statute Section 609.755(2) (1994).  It is
also unlawful to disseminate information in Minnesota about a lottery,
except a lottery conducted by an adjoining state, with intent to
encourage participation therein.  Minnesota Statute Section 609.755(3).


Acts in Minnesota in furtherance of a lottery conducted outside of
Minnesota are included, notwithstanding its validity where conducted. 
Minnesota Statute Section 609.75, Subdivision 1(c) (1994).  Violation of
these provisions is a misdemeanor, punishable by up to 90 days in jail, or
a fine of up to $700, or both.  Minnesota Statute Section 609.755 (1994);
609.02, Subdivision 3 (1994).  It is a gross misdemeanor under Minnesota
law to conduct a lottery.  Minnesota Statute Section 609.76, Subdivision
1(3) (1994).  A gross misdemeanor is punishable by up to one year in jail,
or a $3,000 fine, or both.  Minnesota Statute Section 609.02, Subdivision
4 (1994).


Sports Bookmaking


Sports bookmaking is defined as "the activity of intentionally receiving,
recording or forwarding within any 30-day period more than five bets, or
offers to bet, that total more than $2,500 on any one or more sporting
events."  Minnesota Statute Section 609.75, Subdivision 7 (1994).
Engaging in sports bookmaking is a felony, which is punishable by more
than one year imprisonment.  Minnesota Statutes Sections 609.76,
Subdivision 2 (1994); 609.02, Subdivision 2 (1994).  Intentionally
receiving, recording, or forwarding bets or offers to bet in lesser
amounts is a gross misdemeanor.  Minnesota Statute Section 609.76,
Subdivision 1(7) (1994).


Accomplice Liability


Minnesota's accomplice statute provides that one who intentionally aids,
advises, counsels, or conspires with another to commit a crime is equally
liable for that crime.  Minnesota Statute Section 609.05, Subdivision 1
(1994).  Therefore, persons or organizations who knowingly assist
Internet gambling organizations in any unlawful activity may themselves
be held liable for that unlawful activity.  Thus, for example, Internet
access providers and credit card companies that continue to provide
services to gambling organizations after notice that the activities of the
organizations are illegal would be subject to accomplice liability.


In addition to being illegal under Minnesota law, the Internet gambling
organizations appear to violate several provisions of the federal law.  All
of the services appear to violate 18 United States Code Section 1084,
which prohibits the foreign or interstate transmission of bets or wagers
or information on bets or wagers by use of a wire communication.  In as
much as the Internet gambling organizations involve lotteries, they would
also appear to violate 18 United States Code Section 1301 (prohibiting the
"importing or transporting" of lottery tickets; 18 United States Code
Section 1302 (prohibiting the mailing of lottery tickets); and 18 United
States Code Section 1304 (prohibiting the "broadcasting" of lottery
information).  Sections 1084 and 1301 provide for felony-level penalties,
while Sections 1302 and 1304 provide for misdemeanor penalties.


Placing A Bet Through Internet Gambling Organizations


Minnesota residents should be aware that it is unlawful to make a bet
through Internet gambling organizations.  Minnesota law makes it a
misdemeanor to place a bet unless done pursuant to an exempted,
state-regulated activity, such as licensed charitable gambling or the state
lottery. Minnesota Statute Sections 609.75, Subdivisions 2 -3; 609.755(1)
(1994).  The Internet gambling organizations are not exempted. 
Therefore, any person in Minnesota who places a bet through one of
these organizations is committing a crime.


Minnesota residents should also be aware of forfeiture provisions
related to unlawful gambling activity.  Minnesota Statute Section 609.762,
Subdivision 1 (1994) provides that the following items are subject to
forfeiture:


(a) Devices used or intended for use, including those defined in section
349.30, subdivision 2, as a gambling device, except as authorized in
sections 349.11 to 349.23 and 349.40;
(b) All moneys, materials, and other property used or intended for use as
payment to participate in gambling or a prize or receipt for gambling; and
(c) Books, records, and research products and materials, including
formulas, microfilm, tapes, and data used or intended for use in gambling.


A "gambling device" is defined as "a contrivance which for a
consideration affords the player an opportunity to obtain something of
value, other than free plays, automatically from the machine or
otherwise, the award of which is determined principally by chance." 
Minnesota Statute Section 609.75, Subdivision 4 (1994).


Under this definition of "gambling device", a computer that is used to play
a game of chance for something of value would be subject to forfeiture. 
Gambling is just one example of illegal activity on the Internet.  However,
the same jurisdictional principles apply with equal force to any illegal
activity.


Please direct any inquiries regarding this notice, or report violations of
Minnesota law to the Law Enforcement Section, Minnesota Attorney
General's Office, Suite 1400, NCL Tower, 445 Minnesota Street, St. Paul,
Minnesota 55101-2131, telephone (612) 296-7575.