NOTE: Failures of formatting at this time are solely the responsibility of the instructor. -- N.J., May 5, 2003
 
 

TITLE:  The House Always Wins:  An Analysis of Internet Service Provider Liability in Internet Gambling.
AUTHOR:  Timothy Morey
DATE: April 18, 2003
CLASS: Cyberspace Law Seminar, Spring 2003
Instructor: Nicholas Johnson
 
 
 

I. Introduction:  Focus of Paper
Consider this: gambling began in the Garden of Eden, when Eve made a bet with the serpent about the number of seeds in the infamous apple.  To win the bet, she ate the apple.  Whether true or not, an updated version of the myth for the year 2003 is missing an important element: the Internet.  Eve can now gamble right from her own home by using her Internet Service Provider (hereinafter "ISP") to sign on, access an Internet gambling website, and "bet the house" right from her own home.
This paper focuses on ISP liability for the crime of gambling over the Internet.  Gambling is an excellent litmus for emphasizing the ISP's facilitation of the crime and how current law could be applied to the ISP, either to hold ISPs liable, or to force ISPs to take significant action regarding commission of crime through their services.  With the massive increase in Internet users,1 certain crimes over the Internet, especially gambling, have proportionately ballooned.2  By targeting ISPs as means to temper gambling over the Internet, a major vehicle between gambling sites and gamblers is eliminated or significantly reduced.
A. Problems Associated with Internet Gambling
Suppressing gambling has, and continues to be, a legitimate government interest.3  However, at least one author has stated that "gambling is more popular in America now than, baseball, movies, and Disneyland - combined."4  The widespread popularity of gambling, coupled with state relaxation of laws toward gambling, seems to suggest there might be no reason to hold the ISP responsible for something that is arguably not the same type of social ill as it was 30 years ago.  However, the growth of the Internet, the role of the ISP in user connectivity, and the availability of gambling online exacerbate many of the problems associated with traditional gambling.5
On April 18, 1995, a new industry was born when Interactive Casinos, Inc. opened the first online casino.6  Since that time Internet Gambling has exploded in popularity.  In 1997, Internet gambling generated $300 million in worldwide revenues.7  In 2000, that figure grew to $2.2 billion.8  An article in the ABA estimates that online wagering could reach $100 billion per year by 2006.9
Although gambling in some form is legal is 48 of 50 States, gambling activities are subject to heavy regulation.  Justifications for heavy regulation of traditional gambling rest in reducing gambling's disastrous impact on myriad aspects of society.  Gambling in Cyberspace circumvents traditional means of regulation, yet the same problems exist when the analysis shifts to the Internet.10  For example, societal costs of compulsive gamblers include physical and mental health problems, theft, embezzlement, bankruptcy, suicide, domestic violence, and child abuse and neglect.11  It affects societal productivity in the workplace and has been associated with organized crime.12  Many gambling issues are magnified in severity when they occur over the Internet.13  Listed below are several examples of traditional gambling problems that can be remedied precisely because they occur in Realspace, which could not be solved with comparative success because they occur in Cyberspace.
1. Inspections of all gambling machinery and gaming tables ensure the safety and honesty of the games themselves.
2. Rigorous accounting standards and thorough inspections of account books ensure proper payouts, honest tax compliance, and minimal bribery and corruption.   These problems are much more serious when considering an offshore gambling websites, which are often utilize the accounting standards of the hose country, and not of the United States.
3. Many states forbid gambling on credit.
4. To curb gambling impulses, many states restrict how and where gambling operations can be advertised.  Furthermore, some states allow casinos to prohibit problem gamblers from using their facilities.
5. States allow casinos to forbid gambling by drunks, minors, etc.

Each of these problems14 demonstrates gambling issues that could not be addressed adequately online, and also how gambling online frustrates state or federal attempts to regulate gambling.  The Internet allows rampant advertising, thereby defeating advertising restrictions.  By offering gambling in the home at any hour, it defies time and place restrictions.  By allowing gambling by credit card, it allows people to bet to their credit limit, rather than to the limit of their wallet, bank account, or what one brings to the casino.  Next, Internet gambling operations have no effective way to screen out minors, drunks, or habitual gamblers, all of whom can easily bypass the minimal safeguards that most sites have available.15  Lastly, Internet gambling avoids state and federal taxes of such a popular form of social entertainment.
Concluding, from above, that the prevalence of gambling online exacerbates many of the social problems not present in traditional gambling, the discussion must turn to how, and to what extent, ISPs contribute to Cyberspace gambling.  Because of the ISP's role in an individual's access to the Internet, the control that an ISP can exercise over an individual's account, and the ISP's ability to monitor the accessibility of sites via their services, the ISP may be in the best position to curb gambling over the Internet.  Even if tacit, the role of the ISP in gambling over the Internet is a problem that demands attention.
Part II will discuss an overview of the Internet and the rise of the ISP in Internet access, thus highlighting the interaction between gambling and the ISP.  Part III encompasses the current State and Federal Law on gambling, specifically the current Wire Wager Act, the proposed Internet Gambling Prohibition Acts16, and Case Law.  Part IV will discuss the applicability of the current Federal Law to the ISP.  Part IV will also suggest alternative solutions to the problem.  There are certainly alternatives to the Draconian remedy of criminal liability for an ISP.
II.  Role, History, and Current Trends of the Internet and ISP
A. The Internet
The Internet has been dubbed ""the first nation in cyberspace."17  In 1999, the Internet was believed to connect more than 159 countries and over 109 million users.18  A brief history of the Internet will explain how the ISP has become such a large contributor to unlawful gambling over the Internet.
The concept of the Internet as one understands it today was first described by J.C.R. Licklider, a scholar of MIT in 1962, envisioning a globally interconnected set of computers through which everyone could quickly access data and programs from any site.19  Later that year, Licklider became the first head of the computer research program at DARPA, The Defense Advanced Research Project Agency (formerly known as ARPA) starting in October 1962.20
Lawrence G. Roberts, also of DARPA, took this initial vision and turned it into a reality, developing the first computer-to-computer interaction, and the first Wide Area Network (hereinafter "WAN").21  By the end of 1969, the ARPANet was a small, although concrete reality.22  Funded by the DOD, ARPANet was intended to link military computers with industry and academia computers involved in defense-related research.23  In 1984, the National Science Foundation (hereinafter "NSF") absorbed many of the functions of the Department of Defense's ARPANet.  In the process, NSF funded the technological precursor of today's Internet, the NSFNetwork (hereinafter "NSFNet").24  The smaller versions, mirroring the NSFNet are known as Local Area Networks (hereinafter "LAN"), such as a local university wide network.  These in turn are connected to WANs.25  The WANs are then connected at strategically placed Network Access Points (hereinafter "NAP") located in such cities as Chicago, New York, and San Francisco.26  Thus, the modern Internet contains several smaller versions of the NSFNet.
B. The Rise of the ISP
An interesting point to note is that the original NSFNet did not allow commercial activity through its network, which is perhaps a cause for the meteoric rise of the ISP as a means to connect to the Internet.
The individual computers that one may operate in a home, Internet café, or school library are called "hosts."  These hosts communicate to each other and the internet via the LANs and WANs using Transmission Control Protocol/Internet Protocols, or TCP/IP which enable communications between private and public networks running over any medium and over any kind of computer."27  The Internet Service Provider arose out of parallel networks modeling the NSFNet and its progeny described above.
ISPs purchase multiple phone lines from telecommunication companies placed at strategic points to facilitate local dial-in access for the largest possible population.28  Each of these typical telephone lines are connected to a modem, which in turn is connected to an asynchronous server connected directly to the Internet.29  Individual users then use their personal modems to dial into the ISP network, thereby connecting to the Internet.30
Although there are differing species of the ISP, this essay is concerned only with those that provide content, in multifaceted forms and services, to their subscribers.  America Online, CompuServe, and Prodigy are examples.  Users must first dial into the service and then use the service to gain access to the Internet.31  These ISPs may, and often do, set charges and censor content depending on the type of activity in which the user is engaged.32
Some of the services offered by the ISPs are Internet Search Engines, Filtering/Blocking Software, Realtime Chat, and E-Mail, including advertisements from user selected category and not including spam.  The discussion of ISP setup and the services they offer subscribers lead to three inferences.
First, due to the nature of the numerous services, ISPs may be in the best position to limit the accessibility to gambling sites on the web by limiting accessibility, via search engines and filtering software to these sites.  Second, because ISPs enter into detailed agreements with their subscribers, detailing conduct, services purchased, and other account information, the ISP should reasonably expect that they facilitate in the transmission of gambling information, since they know their users may transmit such information.  The ISP thereby facilitates gambling over the Internet.  Third, because many users depend on ISPs for their internet access, many problem gamblers or minors would have much greater difficulty gambling in Cyberspace, but for the role of ISP in access to the internet.  Federal and State law is thus relevant before one can analyze even if ISP liability is possible.
III. Current Laws on Gambling
A. State Laws
There are many different approaches amongst states to the legality of gambling.  Utah and Hawai'i are the only two states that prohibit all forms of gambling, even a Friday night poker game.33  Every other state besides Hawai'i and Utah has legalized some form of gambling.34  Nevada's reputation toward gambling precedes itself.  Indeed, many states have instituted lotteries and/or tax the revenue generated by casino or riverboat gambling.35  One more fact bears noting, in 1996, legal gambling in the United States was over $580 billion.36
As stated above, state legalization of gambling reflects a popular attitude that gambling does not carry the same social stigma today that was present in America's past.  Indeed, even some courts have considered that the amount of lotteries in the majority of states supports the proposition that gambling should no longer be grounded in morality.37  To some, this begs the question of whether to legalize all forms of gambling.  That difficult question is beyond the scope of this paper.  Notwithstanding the relaxation of rules against certain forms of gambling, states continue to recognize the social ills fostered by gambling.38  This is evident from state efforts to provide assistance to problem gamblers through revenue generated by lotteries, or by printing "Gamblers Anonymous" telephone numbers on lottery tickets.39
In the context of Internet gambling, the above information yields two facts.  First, one can see that the legality of intrastate Internet gambling is necessarily dependent on the forms of legal wagering within that particular state.  Second, when not dealing strictly with intrastate Internet gambling, Federal law is the most informative, as it involves issues of interstate commerce.
B. Federal Laws
As a general proposition, Federal Law has attempted to remain consistent with the varying state approaches to gambling.  This is to support and supplement state law, so that Federal Law does not circumvent the varying state interests in the degree to which gambling is regulated.40  With respect to gambling, three facets of American law relate to gambling on the Internet: Case law, the Wire Wager Act, and the Kyl Bills.
1.  Case Law
First, the landmark case of Champion v. Ames is sound precedent for holding that Congress has Commerce Clause authority to regulate lotteries, a form of gambling, whether it occurs in interstate or foreign commerce.41  Champion was cited as good law in the Edge Broadcasting case.42
A brief examination of the theoretical underpinnings of the Champion case lead one to the Pensacola Telegraph v. Western Union Telegraph case.43  Two quotations from this case, which dealt with the Supreme Court's refusal to grant a local company a monopoly over the telegraph,44 demonstrate Commerce Clause applicability to gambling over the Internet.  First, Commerce Clause powers are not limited to "the instrumentalities of commerce...known or in use when the Constitution was adopted, but...keep pace with the progress of the country, and adapt themselves to the new developments of time and circumstances."45  Second, in a quote directly analogous to the Internet, the telegraph had "[i]n a little more than a quarter of a century changed the habits of business and...is indispensable as a means of intercommunication...especially so in commercial transactions."46  One can see the parallel between the telegraph and the Internet.  It is not a novel proposition to state that the Internet continues to simplify, supplement, and even replace former methods of accomplishing daily tasks, much like the telegraph did around the turn of the century one hundred years ago.47
Thus, the Champion case demonstrates the Supreme Court's willingness to enforce Congressional measures that regulate Internet gambling even if the jurisdiction has legalized gambling, and even if the entity in violation uses means to conduct the gambling not foreseen at the time the Constitution was adopted.
The United States District Court for the Southern District of New York did just this in enforcing the Wire Wager Act (hereinafter "WWA") against Jay Cohen in United States v. Cohen.48  In 1998, twenty-two individuals, including Jay Cohen, were charged with violating the WWA.49  Cohen, like many others, operated an offshore gambling site that was accessible to U.S. residents in a jurisdiction where operating such a site was legal.  Cohen was convicted on one count of conspiracy and seven counts on violating the WWA.50  Although Cohen was given a relatively light sentence under the possible punishments, the case still has broad implications for Internet gambling.  Courts are no longer condoning Internet gambling and the means by which Internet Gambling is conducted.
2.  The Wire Wager Act of 1994
The second facet of law worth noting is the Wire Wager Act of 1994.51  The WWA is perhaps the most relevant law in the Internet gambling context for two reasons.  First, the WWA prohibits the use of a "wire communication facility" to facilitate a gambling enterprise.52  From the previous discussion on the Internet's construction, one can see the high reliance the Internet places on the use of wire communication to transmit information.  Although some connections to the Internet may be made wirelessly, connections within the Internet still depend on wires, thus falling within the ambit of the statute.  Second, the dual purpose of the WWA is to "assist state law enforcement [and] to aid in the suppression of organized gambling activities."53  The lack of a qualifying term to the type of gambling the WWA seeks to suppress shows illuminates two more key points.  First, the WWA seeks to suppress all types of gambling, necessarily encompassing Internet gambling.  Second, enforcing this law to some degree against an ISP is consistent with the purpose listed above: suppression of unlawful gambling activities.
3. The Internet Gambling Prohibition Act of 1997
 The Internet Gambling Prohibition Act of 1997 (hereinafter "IGPA" was the first attempt by Senator John Kyl of Arizona to limit Internet gambling.  The IGPA of 1997 explicitly lists the "Internet or any other interactive computer service" as within the means of forbidden communication related to gambling, and further attempts to modify the WWA.54  ISPs were highly displeased with this legislation, for it would have allowed federal authorities to terminate customer accounts that had participated in Internet gambling.55  The IGPA was passed in the Senate by a vote of 90-10, but died in the House because it was not voted on due to a shortage of time.56
4. The IGPA of 1999
The IGPA of 1997 was reintroduced as the IGPA of 1999, but met with similar results.  Unfortunately, the IGPA of 1999 softened the sanctions on ISPs.  Instead of giving the government the power to cut off ISP service to sites that violated the provisions of the IGPA, the IGPA of 1999 only offered injunctive relief against ISPs.  Notwithstanding the reduced sanctions, the fact that the IGPA of 1999 spoke of the ISP lends support for the ISP's role in facilitation of gambling over the Internet.  The IGPA of 1999, although approved by the Senate, once again failed to clear the House, falling twenty-five votes short of the two-thirds majority required to pass.57  A later discussion demonstrates that, if the Kyl Bill passes, ISPs need to tread cautiously around gambling sites that are accessible via their services.
IV.  Analysis of ISP Liability and Potential Alternatives
 Three arguments will be advanced in support of holding an ISP criminally liable in the context of Internet gambling.  First, an ISP will be analogized to a common carrier, noting obvious and important differences that allow for a finding of criminal liability.  Second, an ISP can be found criminally liable under the WWA.  Third, an in-depth analysis of the Kyl Bill, which has been introduced twice in the Senate, will show that ISP liability is consistent with the purpose and language of the law the Kyl Bill seeks to amend: the WWA.  As an alternative to holding an ISP criminally liable, there are other means to ensure that ISP behavior is consistent with, and does not undermine, the purposes and goals of the current laws surrounding gambling.
A. Since ISP is not a Common Carrier, the ISP can be held responsible for some content
First, by analogizing an ISP to common carrier doctrine, one can apply the differences between the two and suggest there should be findings of criminal liability for access to content allowed by an ISP.
As a most important threshold matter, under the current Federal law, ISPs are not common carriers subject to regulation by the FCC.58  The FCC has "long declined to regulate enhanced service providers, now sometimes called 'information service providers' as common carriers."59  The distinction between a common carrier, such as AT & T, and an ISP such as AOL, rests in the language of the Telecommunications Act of 1996 (hereinafter "the 1996 Act"), as common carrier status requires the service to transmit "information of the user's choosing, without change in form or content of the information as sent and received."60  One can see that because AOL, unlike AT & T, changes the form and content of the transmission, it is not a common carrier.  For example, if one were to make a telephone call, the only transmission is the voice to voice communication, without change in content by AT & T.  In contrast, AOL may decide for the user what content is sent to their email address, in the form of advertisements via email or private messaging.
Another key reason why ISPs are not designated common carriers is because the 1996 Act forces any service provider to choose between either offering service on standardized terms and accepting common carrier status, or negotiating with the buyers over both the price and specifications of the service and thus be a private carrier.61  AOL chooses to offer its customers the option of either a blanket monthly fee, or an hourly charge, thus allowing one to bargain for the services he or she needs.
 The difference between whether a Common Carrier and an ISP is crucial.  Common carriers are not liable for the content of their wire transmissions.62  Thus, it would seem superfluous to point out that because ISPs are not common carriers, then it is possible to conceive of a legal regime that holds the ISP accountable for the access to and transmission of certain information.  Because ISPs allow access to gambling websites, and allow the unfettered transmission of gambling information, thereby facilitating gambling over the Internet, they should not be able to enjoy one of the benefits of common carrier status.
 The ISPs, unlike common carriers, have the ability to track and view the content that is exchanged between users and over the Internet, and the general availability of such information.63  In fact, ISPs will contract with particular businesses to advertise particular services or products.  Furthermore, ISPs, such as AOL, have search engines that allow a user to access and transact business in violation of gambling statutes.  All one has to do is type in a keyword such as "gambling" and a search engine will yield numerous websites dedicated to Internet gambling.  Lastly, ISPs have the ability to respond to complaints of users against other users.  For example, a complaint against a user of obscenity, harassment, or stalking might yield an investigation into that particular user's activity, such as the Zeran v. America Online case.64
 In conclusion on the first point, the analogy between a common carrier and a private carrier demonstrates the fault with precluding ISP liability for the facilitation of gambling on the Internet.  Common carriers, by implication of qualifying for that distinction, receive the benefit of immunity from certain types of suit.  The same protections should not be afforded to an ISP, who is not subject to a demanding standard of regulation, and yet is able to receive the benefits of limited liability in the context of gambling on the Internet.65
B. Analysis of the WWA as it relates to ISPs
The discussion turns now to an in-depth analysis of the WWA as it might apply to holding an ISP criminally liable for gambling over the Internet.  The first argument within this point begins with the proposition that Congress acts to ensure that state law decisions regarding gambling cannot be circumvented by using interstate commerce.66  The WWA has been applied to Internet Gambling with this proposition in mind, that the use of the Internet's wire transmissions should not aid in the proliferation of gambling on the Internet, and that the wily gamblers and site operators should not be able to avoid the jaws of state and federal legislation.67  Furthermore, another goal of the statute was the suppression of organized gambling overall.  Gambling that is illegal under the WWA is accomplished by means of using a wire communication facility, a factor that is essential to the Internet and the ISP.68  Thus, it is counterproductive to ignore the role of the ISP and its effect on the proliferation of Internet gambling and yet outlaw the very means, ISP wires and services, over which the gambling takes place.  Lastly, although there is no language in the WWA that is directed specifically at holding an ISP accountable, there is also no language precluding criminal liability either.  In light of the above considerations, it would appear that the purpose of the WWA, taken with the prior history of the government to regulate the means with which that purpose might be undermined, suggests that the WWA could and should be used to find ISPs criminally liable for their role in internet gambling.
C. The IGPA of 1997 and 1999, supplementing the WWA and holding ISPs liable
A detailed examination of the Kyl Bill, which was written and introduced to supplement the WWA, offers explicit support for finding an ISP criminally liable for its role in Internet gambling under certain circumstances.  The 1997 IGPA would have amended the WWA69 to further include an interactive computer service provider, thereby giving affirmative responsibilities to any ISP to discontinue or refuse to furnish the means by which to conduct Internet gambling.70  Thus, if a notice is given by the appropriate law enforcement agency to an ISP, and no action is taken regarding the discontinuance of such a facility or the means by which Internet gambling could be accomplished, the ISP may suffer criminal or civil penalties.71
Under the statute then, any action not taken once an ISP receives notice may warrant a finding of criminal liability.  Supposing a hypothetical in which such an amendment holding ISPs accountable becomes law, one must ask the degree to which ISP action to discontinue access to or maintenance of a certain site will preclude a finding of liability on the part of the ISP.  It thus may be helpful to suggest less invidious means to accomplish the goal of reducing an ISPs role in Internet gambling.  Four proposals are discussed here.
D. Alternatives to holding the ISP Criminally Liable
First, one alternative is having the ISP install more stringent filtering software.  This would at a minimum induce the ISPs to monitor the content accessible by using their services, which would avoid the problems present in Zeran.72  Furthermore, it would assist in protecting the public, especially problem gamblers, from accessing websites that are not in their best interests.73
Second, many ISP services include search engines.  For example, AOL offers a service where a user can enter a "keyword" and be led directly to a particular site that AOL has assigned to that keyword.  As another alternative to holding an ISP criminally liable, if the ISPs were to delete illegal websites from their databases, the user would no longer have the ability to search for these sites and then access them.
The criticism of this alternative is that it might be overinclusive.  For example, deleting websites that have the word "gambling" present might block websites that are legal, such as a casino homepage in another state where gambling is legal.  However, a person might still be able to access an illegal site by avoiding the search engine altogether, maintaining a degree of free choice in the Internet sites a user chooses to visit.
Third, an ISP could build a clause into its service agreement with a user, specifying that if the user engages in conduct in violation of applicable gambling laws, the ISP has the power to terminate the contract.  Indeed, many ISPs already have clauses that specify the terms in which a user's contract can be terminated.  A recurring issue is ISP willingness to enforce the terms of such a clause.  However, as stated above, criminal liability would be quite the catalyst for an ISP to ensure pursuit of users engaging in illegal gambling.
 Finally, rather than punishing ISPs with the stick of liability, offering the carrot of incentives and benefits to the ISP in exchange for stringent self-supervision of ISP content might be a more viable remedy.  This alternative, coupled with a limited liability provision for an ISP's failure to eliminate a site in which it knows is accessible, would help the ISP take a more active role in curbing gambling on the Internet.  Moreover, it alleviates concerns that ISPs cannot be the policemen of the Internet.
V. Conclusion
 Whichever view one takes regarding the propriety of finding an ISP accountable for crimes such as gambling in Cyberspace, it is clear that the current legal regime frustrates society's interest in curbing the explosion of gambling via the Internet, facilitated by an ISP.
If the trend toward keeping ISPs immune from civil or criminal liability continues, the social ills of gambling will continue to fester.  ISPs may indeed become the serpent and the user may become Eve.  The goal of this essay is, if not to provide solutions to this problem, then to spark a movement that no longer overlooks the complacency of ISPs and ignores the repercussions of allowing immunity for their role in gambling over the Internet.

1 By 1999, the amount of Internet users was expected to increase to 200 Million users, compared to just 40 Million in 1996.  Reno v. ACLU, 521 U.S. 844, 850 (1996).
2 For example, the FBI's caseload of Internet child pornography criminal investigations doubled in 1999 from about 800 to 1,580 active cases.  Peter Gullotta, Children, Sex, and the Web, (2000), at <http://www.cbsnews.com/stories/2000/06/08/national/main204043.shtml> Last Visited March 7, 2003.
3 Valley Broadcasting. v. United States, 107 F.3d 1328, 1332 (9th Cir. 1997).
4 Timothy L. O'Brien, Bad Bet: The Inside Story of the Glamour, Glitz, and Danger of America's Gambling Industry at 4 (1998) (This statement was made partly because in 1996, $586.5 Billion was spent on gambling.)
5 The term "traditional gambling" refers to the typical brick and mortar gambling establishments, as opposed to Cyberspace or Internet Gambling.
6 Jenna F. Karadbil, Casinos of the Next Millennium: A Look into the Proposed Ban on Internet Gambling, 17 Ariz J. Int'l & Comp. Law 413, 415 (2000).
7 Id. at 416.
8 Id.
9 Debra Baker, Betting on Cyberspace: When It Comes to the Future of Internet Gambling, All Wagers Are Off, 85 A.B.A. 84, 85 (1999).
10 Bruce P. Keller, The Game's the Same: Why Gambling in Cyberspace Violates Federal Law, 108 Yale L.J. 1569, 1592 (1999).
11 See Karadbil, supra note 4, at 438.
12 Id.
13 See Keller, supra note 11.
14 Id. (Article listing these factors to show how traditional casinos deal with individual issues related to gambling.)
15 See Karadbil, supra note 4, at 440.
16 Hereinafter IGPA of 1997 and/or 1999.  Also referred to as the Kyl Bill(s).
17 Philip Elmer-Dewitt, First Nation in Cyberspace, Time, Dec. 6, 1993, at 62.
18 American Civil Liberties Union  v. Johnson, 194 F.3d 1149, 1153 (10th Cir 1999).
19 Barry M. Leiner, A Brief History of the Internet, at < http://www.isoc.org/internet/history/brief.shtml#Origins>, (last visited March 3, 2003).
20 Id.
21 Id.
22 Id.
23 American Civil Liberties Union v. Reno, 929 F. Supp. 824, 830 (E.D. Pa. 1996).
24 Henry Edward Hardy, The History of the Net at 34, at <http://www.ocean.ic.net/ftp/doc/nethist.html>, (last visited March 14, 2003).
25 Andy Johnson-Laird, The Internet-The Good, The Bad and the Ugly, 3 The CLA Computer Law Companion 81, 85 (C. Ian Kyer & Christopher Erickson eds., 1996).
26 Id.
27 In Re Federal-State Joint Board On Universal Service, FCC 96J-3 (released Nov. 8, 1996), available in <http://www.fcc.gov> (Last visited March 15, 2003).
28 John S. Quarterman & Carl-Mitchell Smoot, The Internet Connection 77-80. available at <http://www.amazonbooks.com> (last visited February 20, 2003).
29 Id.
30 Id.
31 Cyber Promotions v. America Online, Inc., 948 F. Supp. 436, 439 (E.D. Pa. 1996).
32 Id.
33 See Keller, supra note 11, at 1576.
34 Id.
35 National Coalition Against Legalized Gambling (NCALG) Website at http://www.ncalg.org/pages/ftshts.htm. (last visited February 15, 2003).
36 Timothy L. O'Brien, Bad Bet: The Inside Story of the Glamour, Glitz, and the Danger of American's Gambling Industry at 4.
37 Pic-A-State Pa., Inc. v. Reno, 76 F.3d 1294, 1303 (3d Cir. 1996) (considering, but nevertheless rejecting this proposition).
38 Valley Broadcasting, 107 F. 3d at 1331-1332.
39 Iowa Code Ann. 99E.10(1)(a) "An amount equal to three-tenths of one percent of the gross lottery revenue shall be deposited in a gamblers' assistance fund in the office of the treasurer of the state."
40 United States v. Edge Broadcasting, 509 U.S. 418, 421 (1993).
41 188 U.S. 321, 345.
42 509 U.S. 418, 422 (1993).
43 96 U.S. 1 (1877).
44 Id.
45 Id. at 9.
46 Id.
47 For example, one can now shop for groceries, apply to college, send a fax, and receive continuous news updates; just to name a few of the capabilities of having Internet access.
48 260 F.3d 68 (2nd Cir. 2001).
49 Joseph M. Kelly, Internet Gambling Law, 26 Wm. Mitchell L. Review. 117, 150 (2000).
50 260 F.3d 68, 69 (2nd Cir. 2001).
51 18 U.S.C. 1084 (1994).
52 18 U.S.C. 1084(a) (1994).
53 United States v. McDonough, 835 F.2d 1103, 1104-05 (5th Cir. 1988).
54 See Discussion of Kyl Bill, infra Part IV.
55 Kelly, supra note 45, at 137.
56 Id. at 143.
57 Because the bill was introduced under suspended rules, a two-thirds majority was required.
58 James H. Lister, The Rights of Common Carriers and the Decision Whether to Be a Common Carrier or a Non-Regulated Communications Provider, 53 Fed. Comm. L.J. 91, 93 (2000).
59 Id.
60 47 U.S.C. 153(43).
61 Lister, supra note 19 at 97.
62 Jay M. Zitter, Liability of Internet Service Providers for Internet or E-Mail Defamation, 84 A.L.R.5th 169, 2a (2002) ("A common carrier - an entity that has no editorial control over the information it carries, such as a telephone company, may not beheld liable for information that it merely transmits from one party to another as a passive conduit.")
63 See, generally, 17 U.S.C. § 512 (1998) (Inferring that because, like the Communications Decency Act, there are safe harbor provisions for ISPs, that the ISP must have the capabilities to monitor and police the content of particular websites for which the ISP is responsible.)
64 129 F.3d 327 (4th Cir 1997).
65 For example, the Communications Decency Act of 2000, 47 U.S.C. § 230(c)(2) (Precluding liability for good faith efforts to remove defamatory material from an ISPs bulletin boards.)
66 509 U.S. 418, 421 (1993).  ("Congress has, since the early 19th Century, sought to assist the states.")
67 18 U.S.C. § 1084(a) (1994).
68 Typical Internet connectivity is achieved by the use of phone lines.  See supra note 27.
69 18 U.S.C. § 1084(d) now reads:
 "When any common carrier, subject to the jurisdiction of the FCC, is notified in writing by a Federal, State, or local law enforcement agency, acting within its jurisdiction, that any facility furnished by it is being used or will be used for the purpose of transmitting or receiving gambling information in interstate or foreign commerce in violation of Federal State or local law, it shall discontinue or refuse the leasing, furnishing, or maintaining of such facility, after reasonable notice to the subscriber, but not damages, penalty or forfeiture, civil or criminal, shall be found against any common carrier for any act done in compliance with any notice received.
70 Id.
71 Id.
72 129 F.3d 327, 330-331(4th Cir. 1997) (where AOL's lackadaisical response time may have contributed to the harassment suffered by Zeran).
73 Whether or not the ISP should be responsible to parent the user is answered by balancing the need to protect state interest in suppressing gambling over the individual's free will to find another way to engage in behavior that is not in the gambler's best interest.
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