Could Online Poker Law Raise The Stakes on Free Linking?

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?

[edited slightly 10/17]

(Cross-posted at DeepLinks)

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