[114202] in North American Network Operators' Group
Re: Minnesota to block online gambling sites?
daemon@ATHENA.MIT.EDU (Jeremy McDermond)
Mon May 4 14:22:50 2009
From: Jeremy McDermond <mcdermj@xenotropic.com>
To: Matthew Black <black@csulb.edu>
In-Reply-To: <web-24378155@remus.csulb.edu>
Date: Mon, 4 May 2009 14:22:34 -0400
Cc: nanog@nanog.org
Errors-To: nanog-bounces+nanog.discuss=bloom-picayune.mit.edu@nanog.org
On May 4, 2009, at 11:53 AM, Matthew Black wrote:
> Instead of huffing and puffing your libertarian perspective (you =20
> called the AG's letter garbage), you might make a quick Google =20
> search of "18USC1084(d)," which provides a wealth of information on =20=
> the legality of such enforcement actions.
>
> http://openjurist.org/325/f2d/148
>
But the Seventh Circuit specifically refuses to rule on any =20
Constitutional issues surrounding the statute, instead choosing to =20
rely on the district court's order that the defendants activities did =20=
not violate the law under 18 USC =A71084(d). The statute, as applied by =
=20
Minnesota, could very well be unconstitutional and unenforceable in =20
the manner that Minnesota seeks. In this case the First Amendment may =20=
be applicable because this seems to be a prior restraint on speech. =20
Additionally, it is content based because it seeks to restrict speech =20=
due to its transmission or reception of gambling information. This =20
means that the courts will apply a "strict scrutiny" test to it, =20
requiring that the government have compelling reason to restrict the =20
speech, and that they are applying the least restrictive method of =20
controlling the speech. This is usually a difficult burden for them =20
to sustain.
In this case, the gambling issue seems much like the pornography =20
issue. In _Center for Democracy and Technology v. Pappert_, 337 =20
F.Supp 606 (W.D. Pa. 2004), the Eastern District of Pennsylvania =20
looked at a Pennsylvania state law that looks much like this federal =20
law and required ISPs operating in the state to block based on a =20
letter from the state attorney general. In trying to determine =20
whether the law provided the least restrictive method, the court =20
looked to the types of blocking that the ISPs could employ. =20
Specifically they examined DNS blocking, IP blocking, and URL =20
filtering. The court decided that DNS blocking wasn't particularly =20
effective and would require ISPs to deploy additional equipment. =20
Additionally, URL filtering was impractical because of the deployment =20=
costs as well. The only practical alternative the court recognized =20
was IP blocking, but they said that because it could severely =20
overblock (because of name based virtual hosting) that it wasn't =20
narrowly tailored enough block to pass Constitutional muster.
The situation in _Center for Democracy_ seems remarkably similar to =20
what Minnesota seems to be trying to do with the federal statute. =20
There's certainly the chance that the federal district courts in =20
Minnesota, or the appeals courts will disagree with the Western =20
District of Pennsylvania's assessment of the situation, but as long as =20=
the strict scrutiny standard is applied, and there's a danger of =20
overblocking, then I would expect the Supreme Court to uphold any as =20
applied challenges to the statute.
Disclaimer: I am not a lawyer. This is not legal advice. If you =20
need legal advice, you should hire a real lawyer licensed in your =20
jurisdiction.
> matthew black
> speaking only for myself and not my employer
> california state university, long beach
--
Jeremy McDermond
Xenotropic Systems
mcdermj@xenotropic.com
