October 12, 2006
The Unlawful Internet Gambling Enforcement Act rocked the online casino industry mere days after its passage this month, and, with the president expected to sign the bill on Friday, most commentary has focused on how it will impact the millions of Americans who enjoy playing poker and placing bets online. As in many other instances, this attempt to stamp out an online activity could also impact anyone who wants to link to or help you access sites online.
Blocking unlawful gambling-related activities shouldn’t mean censoring people who simply reference the existence of gambling sites. Linking, like publishing a phone number or street address, is a form of expression protected by the First Amendment, and this bill raises some subtle free speech concerns.
Instead of changing how federal law treats the individuals who place bets, this bill prohibits businesses from receiving certain types of wagers and puts restrictions on financial service providers, like banks and PayPal, that help transfer money to gambling sites.
In so doing, the bill also singles out “interactive computer services” (ICS) like ISPs or website hosting services and then defines what a court can force them to do under this law. So long as an ICS is not running an unlawful gambling site itself, a court can at most require the service provider to remove hyperlinks or block access to sites hosted on their servers. The bill states that ICSs need not any take action before receiving proper notice from federal or state Attorneys General, and they’re under no obligation to actively monitor their systems.
That’s a good start, but the door to such legal responsibility could have been more firmly shut. The law has often recognized that Internet intermediaries and users shouldn’t be held to account for someone else’s bad deeds, and this bill could have made that crystal clear with respect to gambling-related activities. Absent other acts that are themselves violations of the law, those who merely link to or host someone else’s content shouldn’t be responsible for that site’s activity. You shouldn’t have to check with a lawyer any time you simply want to point people to someone else’s site.
Sustaining the Internet’s vibrant, free flow of information depends on appropriately limiting liability for search engines, ISPs, bloggers, and other information-middlemen who help you discover sites and go where you want online. When trying to stop any unlawful online activity via regulation of such middlemen, it’s extremely difficult to ensure that lawful activity is not incidentally blocked in the process.
For instance, despite the DMCA’s “safe harbors” for service providers that host or link to materials that infringe copyright, providers have sometimes censored non-infringing content in order to avoid the possibility of costly copyright lawsuits. Google is currently fending off a lawsuit from porn vendor Perfect 10 alleging that linking amounts to infringement. Meanwhile, the chilling effects on lawful speech would be quite severe if bloggers were responsible for all unlawful speech that other people posted as comments. After receiving even the hint that a link may lead to expensive lawsuits and perhaps liabilty, bloggers would have strong incentives to remove the commenters’ material in order to stay on the safe side of the law. Fortunately, Section 230 of Title 47 offers broad protection for bloggers, bulletin board creators, and other service providers that qualify as ICSs.
The new gambling bill does offer fairly broad protection for services that qualify as ICSs. If an ICS receives proper notice but still refuses to take down a link or block access to an unlawful gambling site, federal or state Attorneys General still can’t get any monetary damages in court. However, for those who don’t qualify as an ICS, this limitation doesn’t apply.
Regardless, this bill shouldn’t be seen as a concession that the acts of linking or hosting can, by themselves, violate the law. That would be a dangerous precedent for regulation of Internet activities far beyond gambling.
Instead, legislators and courts should clarify protections for intermediaries and users who help you locate information online. After all, we don’t send the feds after phone book authors — why should we sick them on the online equivalent?
[10/17 edited slightly]