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Caroline M. Gallay

Minnesota Crackdown Rests on Shaky Legal Ground, Lawyer Says

30 April 2009

Minnesota’s attempt this week to block state residents from accessing nearly 200 gaming Web sites has left pro-gambling interests incensed and gaming lawyers incredulous.

The Alcohol and Gambling Enforcement Division of Minnesota’s Department of Public Safety cited a section of the federal Wire Act of 1961 to authorize serving 11 Internet service and telecoms providers with notice to block Minnesotans from accessing those sites.

John Willems, director of the gambling enforcement division, told IGamingNews Thursday that he believes the Wire Act is applicable.

“As Internet providers have offered phone services and vice versa, it seems increasingly clear that a fair reading of statute 1084 applied, and we were in a position to give written notice,” Mr. Willems said.

Mr. Willems also maintained that it is not his intention to overextend his department’s authority.

“We understand they can operate legally in a number of jurisdictions," he said. "We are not pursuing criminal prosecution; we’re just seeking for them to not do business in Minnesota where it’s unlawful."

Mr. Willems also said that the blacklist does not target any particular type of Internet gaming, but represents a “random selection.”

Indeed, the list was published Thursday and includes a number of sites that do not operate in the United States (a copy is available here).

Legal experts disagree with Mr. Willems’ assertion that the Wire Act applies to I.S.P.s and telecoms providers, however.

Jeff Ifrah, an attorney with Greenberg Traurig and counsel to the Interactive Gaming Council, an industry trade body, told IGamingNews there are a number of problems with Minnesota’s interpretation of the act.

Foremost, the law doesn’t apply to I.S.P.s; it only applies to common carriers.

“It’s an old law that is only meant to apply to telephone carriers," Mr. Ifrah said. "There is clear, established law that it doesn’t apply to I.S.P.s. I have no idea how they’re going to explain using this code that doesn’t apply to I.S.P.s to block access. Any telecom lawyer would tell you that this complete folly what they’ve done.”

Mr. Ifrah said that whether considered from the perspective of federal or state law, Minnesota’s attempt doesn’t hold water. Minnesota statues do not address Internet gambling directly, and federal law simply does not provide state agencies with the authority to block residents’ access to gaming sites.

“There is no legal support for this notice. It will fall as soon as it’s challenged,” Mr. Ifrah said. “I don’t even think the court will get to I-gaming issues. I hope that someone will exercise some reason in Minnesota and pull these notices, because they’re deficient and without authority.”

Representatives for Charter Communications, AT&T and Sprint declined to comment when contacted by IGamingNews.

Pro-gaming organizations, meanwhile, have taken action to combat Minnesota’s attempt to filter residents’ Internet access.

The Poker Player’s Alliance, a player advocacy group that lobbies Congress, sent an e-mail blast to members Wednesday listing Mr. Willem’s direct office line. The e-mail encouraged members to contact Mr. Willems and Governor Timothy J. Pawlenty to express their disapproval.

Additionally, a statement released Wednesday by the PPA condemns the actions taken by Minnesota, comparing them to headlines in Communist China and pledging to “take any action necessary” to ensure Internet poker is protected in the state.

Joe Brennan, chairman of the Interactive Media and Entertainment Gaming Association, a trade group that lobbies Congress, is one of many industry people to express concern over the public safety department's declared intention to expand the program to block access to “thousands” of sites.

“This is really not a case of I.S.P.s blocking the gambling sites, but needing to block residents in their free navigation of the Internet, which is perhaps a more serious issue than what we're talking about,” Mr. Brennan said.

“They’ve said they don’t trust Minnesotans to be law abiding citizens so we've restricted their access," he continued. "It’s similar to saying we don’t trust them not to rob banks so we're restricting access to banks cause they can't help themselves.”

It has been speculated that land-based gaming interests were behind the public safety department's push to crack down on Internet gaming.

Dennis Smith, a department official, declined to comment on the political interests behind the attempt, and Mr. Willems did not return additional phone calls.

Minnesota Crackdown Rests on Shaky Legal Ground, Lawyer Says is republished from
Caroline M. Gallay
Caroline M. Gallay