Re: Minnesota to block online gambling sites?

[Jeremy McDermond <mcdermj () xenotropic com>]

On May 4, 2009, at 11:53 AM, Matthew Black wrote:

> Instead of huffing and puffing your libertarian perspective (you  
> called the AG's letter garbage), you might make a quick Google  
> search of "18USC1084(d)," which provides a wealth of information on  
> the legality of such enforcement actions.
>
> http://openjurist.org/325/f2d/148

But the Seventh Circuit specifically refuses to rule on any  
Constitutional issues surrounding the statute, instead choosing to  
rely on the district court's order that the defendants activities did  
not violate the law under 18 USC §1084(d).  The statute, as applied by  
Minnesota, could very well be unconstitutional and unenforceable in  
the manner that Minnesota seeks.  In this case the First Amendment may  
be applicable because this seems to be a prior restraint on speech.   
Additionally, it is content based because it seeks to restrict speech  
due to its transmission or reception of gambling information.  This  
means that the courts will apply a "strict scrutiny" test to it,  
requiring that the government have compelling reason to restrict the  
speech, and that they are applying the least restrictive method of  
controlling the speech.  This is usually a difficult burden for them  
to sustain.

In this case, the gambling issue seems much like the pornography  
issue.  In _Center for Democracy and Technology v. Pappert_, 337  
F.Supp 606 (W.D. Pa. 2004), the Eastern District of Pennsylvania  
looked at a Pennsylvania state law that looks much like this federal  
law and required ISPs operating in the state to block based on a  
letter from the state attorney general.  In trying to determine  
whether the law provided the least restrictive method, the court  
looked to the types of blocking that the ISPs could employ.   
Specifically they examined DNS blocking, IP blocking, and URL  
filtering.  The court decided that DNS blocking wasn't particularly  
effective and would require ISPs to deploy additional equipment.   
Additionally, URL filtering was impractical because of the deployment  
costs as well.  The only practical alternative the court recognized  
was IP blocking, but they said that because it could severely  
overblock (because of name based virtual hosting) that it wasn't  
narrowly tailored enough block to pass Constitutional muster.

The situation in _Center for Democracy_ seems remarkably similar to  
what Minnesota seems to be trying to do with the federal statute.   
There's certainly the chance that the federal district courts in  
Minnesota, or the appeals courts will disagree with the Western  
District of Pennsylvania's assessment of the situation, but as long as  
the strict scrutiny standard is applied, and there's a danger of  
overblocking, then I would expect the Supreme Court to uphold any as  
applied challenges to the statute.

Disclaimer:  I am not a lawyer.  This is not legal advice.  If you  
need legal advice, you should hire a real lawyer licensed in your  
jurisdiction.

> matthew black
> speaking only for myself and not my employer
> california state university, long beach

--
Jeremy McDermond
Xenotropic Systems
mcdermj () xenotropic com