S 692 -The Internet Gambling Prohibition Act (3/23/99, Sec. 3-6)
30 March 1999
SEC. 3. CIVIL REMEDIES.
(1) JURISDICTION- The district courts of the United States shall have original, exclusive, and continuing jurisdiction to prevent and restrain violations of section 1085 of title 18, United States Code, as added by section 2 of this Act, by issuing appropriate orders in accordance with this section, regardless of whether a prosecution has been initiated under that section.
(A) INSTITUTION BY FEDERAL GOVERNMENT-
(i) IN GENERAL- The United States may institute proceedings under this subsection to prevent or restrain a violation of section 1085 of title 18, United States Code.
(ii) RELIEF- Upon application of the United States under this subparagraph, the district court may enter a temporary restraining order or an injunction against any person to prevent a violation of section 1085 of title 18, United States Code, if the court determines, after notice and an opportunity for a hearing, that there is a substantial probability that such violation has occurred or will occur.
(B) INSTITUTION BY STATE ATTORNEY GENERAL-
(i) IN GENERAL- The attorney general of a State (or other appropriate State official) in which a violation of section 1085 of title 18, United States Code, is alleged to have occurred, or may occur, after providing written notice to the United States, may institute proceedings under this subsection to prevent or restrain the violation, unless the United States has exclusive jurisdiction over the violation under Federal law.
(ii) RELIEF- Upon application of the attorney general (or other appropriate State official) of an affected State under this subparagraph, the district court may enter a temporary restraining order or an injunction against any person to prevent a violation of section 1085 of title 18, United States Code, if the court determines, after notice and an opportunity for a hearing, that there is a substantial probability that such violation has occurred or will occur.
(C) EXPIRATION- Any temporary restraining order or preliminary injunction entered pursuant to subparagraph (A) or (B) shall expire if, and as soon as, the United States, or the attorney general (or other appropriate State official) of the State, as applicable, notifies the court that issued the injunction that the United States or the State, as applicable, will not seek a permanent injunction.
(3) EXPEDITED PROCEEDINGS-
(A) IN GENERAL- In addition to any proceeding under paragraph (2), a district court may enter a temporary restraining order against a person alleged to be in violation of section 1085 of title 18, United States Code, upon application of the United States under paragraph (2)(A) of this subsection, or the attorney general (or other appropriate State official) of an affected State under paragraph (2)(B) of this subsection, without notice and the opportunity for a hearing, if the United States or the State, as applicable, demonstrates that there is probable cause to believe that the use of the Internet or other interactive computer service at issue violates section 1085 of title 18, United States Code.
(B) EXPIRATION- A temporary restraining order entered under this paragraph shall expire on the earlier of--
(i) the expiration of the 30-day period beginning on the date on which the order is entered; or
(ii) the date on which a preliminary injunction is granted or denied.
(C) HEARINGS- A hearing requested concerning an order entered under this paragraph shall be held at the earliest practicable time.
(b) INTERACTIVE COMPUTER SERVICE PROVIDERS-
(1) ELIGIBILITY- For purposes of this subsection, an interactive computer service provider is described in this paragraph only if the provider has established and reasonably implements a policy that provides for the termination of the account of a subscriber of the service system or network of the provider upon the receipt by the provider of a notice described in paragraph (4)(B).
(2) USE OF FACILITIES OR SERVICES- Nothing in section 1085 of title 18, United States Code, may be constructed to impose, or to provide any basis for, liability against an interactive computer service provider described in paragraph (1) whose facilities or services are used by another person to engage in an activity prohibited by that section--
(A) arising out of any transmitting, routing, or providing of connections for the material or activity (including intermediate and temporary storage in the course of such transmitting, routing, or providing connections) by the provider, if--
(i) the material or activity was initiated by or at the direction of a person other than the provider;
(ii) the transmitting, routing, or providing of connections is carried out through an automatic process without selection of the material or activity by the provider;
(iii) the provider does not select the recipients of the material or activity, except as an automatic response to the request of another person; and
(iv) the material or activity is transmitted through the system or network of the provider without modification of its content; or
(B) with respect to material or activity at an online site residing on a computer server owned, controlled, or operated by or for the provider, unless the provider fails to comply within a reasonable time with a notification under paragraph (4) with respect to the particular material or activity at issue.
(3) PROTECTION OF PRIVACY- Nothing in this section or in section 1085 of title 18, United States Code, may be construed to impose or authorize an obligation on an interactive computer service described in paragraph (1) to--
(A) monitor material or use of its service; or
(B) except as required by an order of a court, to gain access to, to remove, or to disable access to material in any case in which such conduct is prohibited by law.
(4) NOTICE TO INTERACTIVE COMPUTER SERVICE PROVIDERS-
(A) IN GENERAL- If an interactive computer service provider receives from a Federal or State law enforcement agency, acting within its jurisdiction, a written or electronic notice described in subparagraph (B), that a particular online site residing on a computer server owned, controlled, or operated by or for the provider is being used to violate section 1085 of title 18, United States Code, the provider shall not be liable under any Federal or State law if, in a reasonably expeditious manner--
(i) the provider removes or disables access to the material or activity residing at that online site that allegedly violates that section; or
(ii) if the provider does not own, operate, or control the site at which the subject material or activity resides, the provider notifies the Federal or State law enforcement agency that--
(I) the provider is not the proper recipient of such notice; and
(II) upon receipt of a subpoena, the provider will cooperate with the Federal or State law enforcement agency in identifying the person or persons who control the site.
(B) NOTICE- A notice is described in this subparagraph if it--
(i) identifies the material or activity that allegedly violates section 1085 of title 18, United States Code;
(ii) provides information reasonably sufficient to permit the provider to locate the material or activity;
(iii) is supplied to any agent of a provider designated under section 512 of title 17, United States Code, if information regarding such designation is readily available to the public; and
(iv) provides information that is reasonably sufficient to permit the provider to contact the law enforcement agency that issued the notice, including--
(I) the name of the law enforcement agency; and
(II) the name and telephone number of an individual to contact at the law enforcement agency, and, if available, the electronic mail address of that individual.
(A) IN GENERAL- Except as provided in subparagraph (B), a Federal or State law enforcement agency acting within its jurisdiction, may, following the issuance of a notice to an interactive computer service provider under paragraph (4), in a civil action, obtain an injunction or other appropriate relief to prevent the use of the interactive computer service in violation of Federal or State law.
(B) OTHER LIMITATIONS- In the case of any application for an injunction against an interactive computer service provider to prevent a violation of section 1085 of title 18, United States Code--
(i) arising out of the transmitting, routing, or providing of connections by the provider for material or activity that is prohibited by section 1085 of title 18, United States Code, or performing the intermediate and temporary storage of such material or activity in the course of such transmitting, routing, or providing of connections, the injunctive relief is limited to--
(I) an order restraining the provider from providing access to an identified subscriber of the system or network of the interactive computer service provider, who is using that access to violate section 1085 of title 18, United States Code (or whose use of that access involves a violation of section 1085 of title 18, United States Code, by another person), by terminating the specified account of that subscriber; and
(II) an order restraining the provider from providing access, by taking reasonable steps specified in the order to block access, to a specific, identified, foreign online location;
(ii) with respect to conduct other than that which qualifies for the limitation on remedies set forth in clause (i), the injunctive relief is limited to--
(I) an order restraining the provider from providing access to a material or activity that violates section 1085 of title 18, United States Code, at a particular online site residing on a computer server, owned, operated, or controlled by the provider;
(II) an order restraining the provider from providing access to a subscriber of the system or network of the interactive computer service, who is identified in the order and who is using such service in violation of section 1085 of title 18, United States Code, by terminating the specified account of that subscriber; or
(III) such other injunctive remedies as the court considers necessary to prevent or restrain access to specified material or activity that is prohibited by section 1085 of title 18, United States Code, at a particular online location residing on a computer server owned, operated, or controlled by the provider, that are the least burdensome to the provider among the forms of relief that are comparably effective for that purpose.
(C) CONSIDERATIONS- The court, in determining appropriate injunctive relief under this paragraph, shall consider--
(i) whether such an injunction, either alone or in combination with other such injunctions issued against the same provider (under section 1085 of title 18, United States Code, or under this section) would significantly burden either the provider or the operation of the system or network of the provider;
(ii) whether implementation of such an injunction would be technically feasible and effective, and would not unreasonably interfere with access to lawful material at other online locations;
(iii) whether other less burdensome and comparably effective means of preventing or restraining access to the illegal material or activity are available; and
(iv) the magnitude of the harm likely to be suffered by the community if the injunction is not granted.
(D) NOTICE AND EX PARTE ORDERS- Injunctive relief under this paragraph shall not be available without notice to the service provider and an opportunity for such provider to appear before the court, except for orders ensuring the preservation of evidence or other orders having no material adverse effect on the operation of the communications network of the service provider.
(A) PREEMPTION OF STATE LAW- An interactive computer service provider described in paragraph (1) shall not be liable under any State law prohibiting or regulating gambling, or subject to any injunctive relief under any such State law, in connection with the use of the interactive computer service of that provider by any person in interstate or affecting commerce.
(B) IMMUNITY FROM LIABILITY- In the absence of fraud or bad faith, an interactive computer service provider described in paragraph (1) shall not be liable for any damages, penalty, or forfeiture, civil or criminal, under Federal or State law for--
(i) taking any action described in paragraph (1) or paragraph 4(A) to comply with a notice described in paragraph (4)(B); or
(ii) complying with any court order issued under paragraph (5).
(c) RELATIONSHIP TO OTHER REMEDIES-
(1) IN GENERAL- Except as provided in subsection (b)(6), nothing in this section may be construed to affect any remedy under section 1085 of title 18, United States Code, or under any other provision of Federal or State law.
(2) AVAILABILITY OF RELIEF- The availability of relief under this section shall not depend on, or be affected by, the initiation or resolution of any action under section 1085 of title 18, United States Code, or under any other provision of Federal or State law.
SEC. 4. RULE OF CONSTRUCTION.
Except as provided in section 3(b)(6) of this Act, nothing in this Act or in section 1085 of title 18, United States Code, as added by section 2 of this Act, may be construed otherwise to affect any prohibition or remedy relating to gambling that is imposed under any other provision of Federal or State law.
SEC. 5. REPORT ON ENFORCEMENT.
Not later than 3 years after the date of enactment of this Act, the Attorney General shall submit to Congress a report, which shall include--
(1) an analysis of the problems, if any, associated with enforcing section 1085 of title 18, United States Code, as added by section 2 of this Act;
(2) recommendations for the best use of the resources of the Department of Justice to enforce that section; and
(3) an estimate of the amount of activity and money being used to gamble on the Internet.
SEC. 6. SEVERABILITY.
If any provision of this Act, an amendment made by this Act, or the application of such provision or amendment to any person or circumstance is held to be uncon- stitutional, the remainder of this Act, the amendments made by this Act, and the application of the provisions of such to any person or circumstance shall not be affected thereby.
END