Each of these problems14 shows a scenario 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.  Through 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 or bank account.  Lastly, 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
Concluding, from above, that the prevalence of gambling online exacerbates many of the social problems not present in Realspace gambling, the discussion must turn to how, and to what extent, ISPs contribute to Cyberspace gambling.  In the end, because of the ISPs role in an individual's access to the internet, and the control that an ISP can exercise over an individual's account, the ISP may be in the best position to curb gambling over the internet, rather than by passively allowing such a pervasive problem to fester.
Part II will discuss an overview of the internet and the role 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 Wire Wager Act and the Kyl Bill.  Part IV will discuss the applicability of the current Federal Law to the ISP, and also analyze several other arguments for finding ISP liability.  Part IV will also suggest alternative solutions to the problem.
II.  Role, History, and Current Trends of the ISP
 The Internet has been dubbed ""the first nation in cyberspace."16  In 1999, the Internet was believed to connect more than 159 countries and over 109 million users.17  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 we understand 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.18  In spirit, the concept was very much like the Internet of today.  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 1962.19
Lawrence G. Roberts, also of DARPA, took this initial vision and turned it into a reality, developing the first computer to computer interaction, and thus the first Wide Area Network (hereinafter "WAN").20  By the end of 1969, the ARPANet was a small, although concrete reality.21  Funded by the DOD, ARPANet was intended to link military computers with computers and computer networks in industry and academia involved in defense-related research.22  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 National Science Foundation Network (hereinafter "NSFNet").23  The smaller versions are known as Local Area Networks (hereinafter "LAN"), which in turn are connected to WANs.24  The WANs are then connected at strategically placed Network Access Points (hereinafter "NAP") located in such cities as Chicago, New York, and San Francisco.25  Thus, the modern Internet contains several smaller versions of the NSFNet.
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, which enable communications between private and public networks running over any medium and over any kind of computer."26  The Internet Service Provider arose out of parallel networks modeling the NSFNet and its progeny described above.  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.
Internet Service Providers purchase multiple phone lines from telecommunication companies placed at strategic points to facilitate local dial-in access for the largest possible population.27  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.28  Individual users then use their personal modems to dial into the ISP network, thereby connecting to the Internet.29
Although there are differing species of the Internet Service Provider, 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.30  These ISPs may, and often do, set charges and censor content depending on the type of activity in which the user is engaged.31
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 two 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, thereby contributing to the issue of 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.32  Every other state besides Hawai'i and Utah has legalized some form of gambling.33  Nevada's reputation toward gambling precedes itself.  Indeed, many states have instituted lotteries and/or tax the revenue generated by casino or riverboat gambling.34  One more fact bears noting, in 1996, legal gambling in the United States was over $580 billion.35
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 states supports the proposition that gambling should no longer be grounded in morality.36  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.37  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.38
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.39  With respect to gambling, three facets of American law relate to gambling on the internet: case law, the Wire Wager Act, and the Kyl Bill.
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.40  Champion was cited as good law in the Edge Broadcasting case.41  A brief examination of the theoretical underpinnings of the Champion case lead one to the Pensacola Telegraph v. Western Union Telegraph case.42  Two quotations from this case, which dealt with the Supreme Court's refusal to grant a local company a monopoly over the telegraph,43 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."44  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."45  Thus, the Champion case demonstrates Congress' ability to regulate Internet gambling under the Commerce Clause, even if the jurisdiction is outside of the United States and has legalized gambling.
The second facet of law worth noting is the Wire Wager Act of 1994 (hereinafter "WWA").46  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.47  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."48  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.
   Third, the Kyl Bill is also highly relevant to internet gambling.  The Kyl Bill was introduced and 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.49
Clearly, none of these statutes find criminal liability for the Internet Service Provider.  This is the problem with which this essay takes issue.
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.
 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.50  The FCC has "long declined to regulate enhanced service providers, now sometimes called 'information service providers' as common carriers."51  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."52
Another key reason why ISPs are not designated common carriers is because the 1996 Act forces a 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.53
 The difference between whether a Common Carrier and an ISP is crucial.  Common carriers are not liable for the content of their wire transmissions.54  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 ISPs 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.55  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 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.
 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.
 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 or government agents.56    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.57  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.58  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.
 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.  Senator Jon Kyl first introduced the Kyl Bill in 1995, where it was referred to the Senate Committee on the Judiciary, where it died.59  Kyl introduced an amended bill on March 13, 1997.60  The bill would amend the WWA.
 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.61
 
The new Kyl Bill would amend § 1084(d) 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.62  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.63
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.
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.64  Furthermore, it would assist in protecting the public, especially problem gamblers, from accessing websites that are not in their best interests.65
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 users contract can be terminated.  A recurring issue is that ISPs willingness and diligence 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 holding the ISPs criminally liable for their role in gambling on the internet, it might be wise to consider holding the ISPs civilly liable.  This might be much more feasible as a practical matter.  Punishing an ISP monetarily might make more sense holding an ISP criminally liable.
Whichever view one takes regarding the propriety of finding an ISP accountable for gambling over the internet, it is clear that the current regime of
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 soceity's interest in reducing the potential for abusing the privileges of such a powerful and useful tool.
If the trend toward keeping ISPs immune from civil or criminal liability continues, the social ills of gambling will continues to fester.  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. 

1 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.
2By 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).
3 For example, the FBI's caseload of Internet child pornography 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.
4 American Civil Liberties Union v. Miller, 977 F. Supp. 1228, 1233 (N.D. Ga. 1997).
5 McIntyre v. Ohio Elections Comm'n, 514 U.S. 334, 357 (1995).
6 Id. "The right to remain anonymous may be abused when it shields fraudulent conduct."
7 See, e.g., Zeran v. America OnLine, Inc., 129 F.3d 327 (4th Cir. 1997). (It was alluded that in some contexts the author of a particular defamatory comment may be unidentifiable).
8 129 F.3d 327 (4th Cir. 1997).
9 47 U.S.C. § 230 (2000).
10 47 U.S.C. § 230(c)(2).
11 Valley Broadcasting. v. United States, 107 F.3d 1328, 1332 (9th Cir. 1997).
12 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.)
13 Bruce P. Keller, The Game's the Same: Why Gambling in Cyberspace Violates Federal Law, 108 Yale L.J. 1569, 1592 (1999).
14 Id. (Article listing these factors to show how Realspace casinos deal with individual issues related to gambling.)
15 Id.
16 Philip Elmer-Dewitt, First Nation in Cyberspace, Time, Dec. 6, 1993, at 62.
17 ACLU v. Johnson, 194 F.3d 1149, 1153 (10th Cir 1999).
18 Barry M. Leiner, A Brief History of the Internet, at < http://www.isoc.org/internet/history/brief.shtml#Origins>, last visited March 3, 2003.
19 Id.
20 Id.
21 Id.
22 American Civil Liberties Union v. Reno, 929 F. Supp. 824, 830 (E.D. Pa. 1996).
23 Henry Edward Hardy, The History of the Net at 34 (last modified Dec. 14, 1994) <http://www.ocean.ic.net/ftp/doc/nethist.html>.
24 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).
25 Id.
26 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).
27 John S. Quarterman & Smoot Carl-Mitchell, The Internet Connection 77-80
28 Id.
29 Id.
30 Cyber Promotions v. America Online, Inc., 948 F. Supp. 436, 439 (E.D. Pa. 1996).
31 Id.
32 Bruce P. Keller, The Game's the Same: Why Gambling in Cyberspace Violates Federal Law, 108 Yale L.J. 1569, 1576 (1999).
33 Id.
34 National Coalition Against Legalized Gambling (NCALG) Website at http://www.ncalg.org/pages/ftshts.htm. (look up)
35 Timothy L. O'Brien, Bad Bet: The Inside Story of the Glamour, Glitz, and the Danger of American's Gambling Industry at 4.
36 Pic-A-State Pa., Inc. v. Reno, 76 F.3d 1294, 1303 (3d Cir. 1996) (considering, but nevertheless rejecting this proposition).
37 Valley Broadcasting, 107 F. 3d at 1331-1332.
38 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."
39 United States v. Edge Broadcasting, 509 U.S. 418, 421 (1993).
40 188 U.S. 321, 345.
41 509 U.S. 418, 422 (1993).
42 96 U.S. 1 (1877).
43 Id.
44 Id. at 9.
45 Id.
46 18 U.S.C. 1084 (1994).
47 18 U.S.C. 1084(a) (1994).
48 United States v. McDonough, 835 F.2d 1103, 1104-05 (5th Cir. 1988).
49 See Discussion of Kyl Bill, infra Part IV.
50 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).
51 Id.
52 47 U.S.C. 153(43).
53 Lister, supra note 19 at 97.
54 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.")
55 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.)
56 509 U.S. 418, 421 (1993).  ("Congress has, since the early 19th Century, sought to assist the states.")
57 18 U.S.C. § 1084(a) (1994).
58 Typical Internet connectivity is achieved by the use of phone lines.  Supra note 27.
59 James Sterngold, A One-Armed Bandit Makes a House Call; Virtual Casino Coming, But Regulation is Still a Big Question, N.Y. Times, October 28, 1996, at D1.
60 "Internet Gambling Prohibition Act of 1997" S. 474 (Introduced March 13, 1997.)
61 18 U.S.C. § 1084(d). (2003).
62 Id.
63 Id.
64 Cite (wher AOL's lackadaisical response time may have contributed to the harassment osuffered by Zeran).
65 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.