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News From the States

Summer 2001

CONTENTS

Communications and Information Policy Committee Meeting, August 11-15, 2001
State Supreme Court Upholds Washington Anti-Spam Law
Internet Gambling
The New Global Telecommunications Industry & Consumers
Permanent Injunction Issued Against Michigan Online Child Protection Act
Operation Cure.All
Courts Reject DNA Database Challenges
Closing in on Cyberstalkers
Digital Driver's Licenses
Update: E-Government Portals
Colorado and Illinois Supreme Courts Rule on Rights of Way Fees

last update: 7/30/01

Communications and Information Policy Committee Meeting, August 11-15, 2001

State Supreme Court Upholds Washington Anti-Spam Law

- Submitted by Pam Greenberg

Internet Gambling

New Jersey has taken the opposite stance of Nevada by allowing a lawsuit to proceed against a foreign corporation for accepting bets from New Jersey gamblers. While New Jersey does not have any statutes banning Internet gambling, Attorney General John Farmer has filed suit against three foreign Internet gambling sites. Finding the owners of these corporations, however, may prove to be difficult, as the real names of the owners are often not listed in the corporate charters in order to avoid prosecution. Farmer, however, has stated that if the corporate officials do not respond to the summons, New Jersey would seek a default judgment against the corporations.

As a backdrop to the activities of Nevada and New Jersey, Congress passed the Federal Wire and Wager Act in 2000. The Federal Wire and Wager Act, sponsored by Senator Jon Kyle (R.-A.Z.), prohibits placing wagers on any sporting event or contest using wired communications such as the telephone or Internet. The Wire and Wager Act was passed in an attempt to assist states in enforcing their gambling laws and also in recognition of the need for independent federal action to combat interstate gambling operations.

- Submitted by Michael Barry

The New Global Telecommunications Industry & Consumers

Penn State University's Institute for Information Policy recently released a publication on the sweeping changes driving today's telecommunications industry. The authors offer an overview of current industry forces, free of technical jargon, and provide a glimpse into the future. Two trends are clear in the report. One, telecommunications is no longer defined by just your plain old telephone. Two, the industry thrives in an environment open to competition and technological innovation. Chapters in the publication include "Technology and Change," "Business Imperatives," "Consumers, Change and the Benefits of Change" and "Projecting the Telecommunications Industry in 2009."

- Submitted by Bob Boerner

Permanent Injunction Issued Against Michigan Online Child Protection Act

A permanent injunction issued in June against a Michigan law is the latest in a string of federal court orders limiting the ability of states to regulate the dissemination of sexually explicit materials on the Internet. The 1999 Michigan law prohibited distribution or display to minors, through the Internet, of certain sexually explicit materials. In granting the permanent injunction, Judge Arthur J. Tarnow noted that " ... despite the fact that protection of minors is a compelling state interest, the Court finds that 1999 Public Act 33 is neither narrowly tailored nor does it apply the least restrictive means available to achieve that goal." Consequently, the Court finds that ...[it] violates the First Amendment of the United States Constitution."

- Submitted by Pam Greenberg

Operation Cure.All

The FTC proposed settlements requiring companies to cease making false claims about their products; some firms will be required to offer refunds to customers, while one will pay $150,000 in fines. The actions are part of a coordinated effort with the U.S. Food and Drug Administration (FDA) Health Canada and state attorneys general. Launched in 1999 and known as "Operation Cure.All", it is a continuing crackdown on the sale of unproven health products over the Internet.

- Submitted by Janna Goodwin

Courts Reject DNA Database Challenges

The Fourth Amendment protects individuals from unreasonable searches and seizures by the government. Usually, for a search and seizure to be considered reasonable, the police must obtain a search warrant, having shown probable cause. Regarding DNA samples from convicted offenders, courts have held that such a warrant is not required because the statute applies uniformly to all specified offenders. And, with fingerprints, courts have determined that government's interest in accurate prosecution of crimes and in solving future crimes outweighs a convicted offender's right of privacy.

Offenders have challenged DNA databases under the "cruel and unusual punishment" provisions of the Eighth Amendment. Courts have replied that where the DNA sample is taken by a trained technician who complies with medically acceptable procedures, nonconsensual drawing of the DNA sample does not violate the Eighth Amendment. And, since the DNA sample is taken for a legitimate interest in constructing the DNA database, and not for intentionally harming inmates, the Eighth Amendment prohibition is not triggered.

The final major argument leveled against DNA databases is the Ex Post Facto Clause prohibiting states from passing a law that changes the punishment for a crime or criminalizes behavior for an act that was not criminal or punishable at the time it was committed. Courts have denied this challenge, as well, responding that DNA databases do not retroactively disadvantage offenders. Rulings have asserted that because DNA databases serve law enforcement, not penal purposes, they do not impose a greater punishment.

The June issue of State Legislatures magazine features the article, "Proof Positive: DNA Testing of Criminals,"  The program "DNA: Power to Convict, Exonerate" will be held on Tuesday, August 14^th during NCSL's Annual Meeting in San Antonio, Texas.

- Submitted by Heather Morton

Closing in on Cyberstalkers

- Submitted by Pam Greenberg

Digital Driver's Licenses

Washington joins other regions utilizing technology for their departments of motor vehicles. New York's Internet site allows drivers to look up and renew personal license plates and registration in addition to tracking orders. In California, drivers can make appointments, renew vehicle registration and register to vote on its website. And in Virginia, motorists can take advantage of a myriad of services, including changing addresses, ordering plates, reporting theft, and purchasing an ID.

- Submitted by Janna Goodwin
 

---

Update: E-Government Portals

Rhode Island's portal is currently in development, scheduled to be operational this fall. The state plans to survey departments, agencies and the public to find out what services people want. Vehicle registration renewals and hunting, fishing and boating license sales will be included in the interactive services. To date, fees for services that benefit the public will not be charged.

Continuing to expand the services offered through its portal, California now offers wireless access to www.ca.gov. Through their personal digital assistants (PDA) and cellular telephones, individuals can receive energy alerts, lottery results, traffic updates and articles from the governor's press room.

At the federal level, FirstGov has added links to 16 million Web pages from all 50 states and Washington, D.C. The website, www.firstgov.gov, now searches through a total of 47 million state and federal Web pages for information. In addition, if the state or federal site has translated a Web page into another language, FirstGov links to those pages as well. FirstGov intends to expand into other languages in the future.

- Submitted by Heather Morton

Colorado and Illinois Supreme Courts Rule on Rights of Way Fees

In City and County of Denver v. Qwest et al. 18 P.3d748 (Colo. 2001), the Colorado Supreme Court held that the management of local streets for use by telecommunications companies is a matter of both state and local concern. The Court struck down a Denver ordinance that conflicted with the state law.

Colorado law prohibits local governments from requiring telecommunications companies to purchase a franchise to use public rights-of-way. It also prohibits local governments from charging these fees.

In PrimeCo Personal Communications et al. v. The Illinois Commerce Commission, et al., 748 N.E.2d 195, the Illinois Supreme Court held that wireless telephone companies are not required to pay municipal "rights of way" fees. It is reported to be the first court in the nation to address whether these fees are constitutional.

The wireless telephone companies argued that the Illinois state law is unconstitutional. Unlike traditional telephone companies that pay fees to cities for permission to dig up roads, dig holes and erect telephone poles, the wireless companies argued that they do not use public rights of way by sending signals through the air. The Illinois Supreme Court agreed and held that imposing a fee on the wireless companies is unconstitutional.

- Submitted by Bob Boerner