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http://www.cardplayer.com/poker_news/news_story/1446?class=PokerNews
Legal Landscape of Online Gaming Has Not Changed
Analysis From CardPlayer’s Legal Counsel
Misleading news stories abound both online and in print regarding the passage of the Unlawful Internet Gambling Enforcement Act. The completely incorrect interpretation states that the new bill essentially outlaws most forms of Internet gambling. The new bill absolutely does no such thing.I have been analyzing legal issues for 25 years. I have gone to court thousands of times interpreting statutes and I have taught new lawyers the correct method by which a statute should be analyzed. For over 15 years I was part of a legal hotline where California attorneys would call me with a legal question. As this is my field of expertise, I am flabbergasted at the misinformation being perpetuated regarding the new bill.
The New Bill Does Not Make Online Poker Illegal
The new bill attempts to make it more difficult to get money into a site by forbidding US financial Institutions from funding the type of online gambling that the law has previously made illegal. The new bill does not make online gaming illegal where it was not illegal before. Let me say that again. The new bill does not make online gaming illegal. The bill merely speaks to the mechanism by which an online account is funded. I am going to spend some time in this article explaining the accuracy of my reasoning.
The Bill Constitutes Enforcement Legislation
First and most simplistically, the bill is called the Unlawful Internet Gambling Enforcement Act. The operative word is enforcement. It is a bill whose goal is to enforce laws that already exist.
The bill begins in section 5361 by discussing congressional findings. In that section the bill states that Internet gambling is funded by credit cards, etc. Section 5361(a)(4) states in relevant part:
“New mechanisms for enforcing gambling laws on the Internet are necessary because traditional … mechanisms are often inadequate…”
The Bill Does Not Change Existing Gaming Law
Next, section 5361(b) specifically states that nothing in this new law shall be construed as “altering, limiting, or expanding any Federal or State law… prohibiting, permitting or regulating gambling within the US.” In other words, the language of the statute confirms that this new law does not change existing gaming law. It does not speak to the legality of online gaming. It only applies to the mechanism of funding any Internet gaming that has already been deemed to be illegal.
Even Senator Frist said about the bill, “Although we can’t monitor every online gambler or regulate offshore gambling, we can police the financial institutions that disregard our laws.”
The Definition of Unlawful Internet Gambling
Of extreme importance in a statute is the definitional section that sets forth the parameters of a bill. The term “Unlawful Internet gambling” is given a definition. Section 5362(6) defines unlawful Internet gambling to mean placing or receiving a bet “where such bet or wager is unlawful under any applicable Federal or State law.” This raises the question regarding what type of online gambling is already illegal. That will be discussed below.
First, let’s move on to the meat of the bill. This is the section that states just what is prohibited. Section 5363 begins by saying that “No person engaged in the business of betting or wagering may knowingly accept…” electronic transfers, credit cards, etc. where a person is engaged in “unlawful Internet gambling.” This new law applies, if and only if, the gambling is already illegal under current law.
This brings us directly to the issue of what has been deemed illegal in the last 10 years since the first online casino opened its virtual doors. In a nutshell, sports betting is made illegal by the 1961 Wire Act, but poker is not.
Remember please, that the Attorney General’s office has not brought one lawsuit in 10 years against a poker site, even though it takes the position that online poker is prohibited by the Wire Act.
How the Law Works
In order to explain this discrepancy, I must digress with some rudimentary background about just how the law works. You probably remember from your high school civics class that the legislature makes laws that the judiciary construes. That means that our representatives in Congress draft the laws that judges then interpret.
Legislators are not wordsmiths, which is why there is a whole body of law called statutory construction. The first rule of statutory construction says that if the words of the statute are clear, the court may rely upon the common language. But if the language is not clear, the court must construe the language using a complicated legal process.
If a law is unclear, a depuy attorney general (the prosecutor) will take one position and often a defense attorney will take an opposing position. They go to court and a judge makes a determination. So when the Attorney General makes a public statement about what a law means, he might or might not be correct. It is ultimately the decision of a court.
When the Attorney General’s office takes the position that the Wire Act prohibits online poker, the court ultimately decided whether that opinion is accurate. Senator Frist incorrectly believes that all online gaming is illegal. He said: “or me as majority leader, the bottom line is simple: Internet gambling is illegal.”
However, in order for Internet poker to be illegal, there must be a specific statute that forbids such activity. For years I have posed the question: What statute prohibits online poker? And if it is illegal, why has there not been one lawsuit filed by the government against an owner of an online poker site?
Online Poker Is Not Illegal
Even though the Attorney General’s office has publicly taken the position that the 1961 Wire Act forbids online poker, in 10 years they have not put their money where their mouth is. Why? The judiciary (that is, the interpreting body) has already held that the 1961 Wire Act doesn’t speak to poker. It only applies to sports betting.
The case in point to which I refer is “In Re Mastercard International,” decided by District Court Judge Stanwood R. Duvall, Jr. in 2001. Among other issues, Judge Duval was faced with the question of whether the Wire Act applied to online gambling. The posture of the case was interesting because many deadbeat gamblers attempted to avoid online gambling debts they had incurred by alleging that the money they owed their credit card companies amounted to illegal gambling debts in violation of the Wire Act. As a matter of fact, there were so many similar suits filed by so many gamblers who did not want to pay their losses that the lower court consolidated 33 such similar charges.
Judge Duvall ruled that the Wire Act only prohibited wagering on sports events and he dismissed all 33 cases, noting that “Comparing the face of the Wire Act and the history surrounding its enactment with the recently proposed legislation, it becomes more certain that the Wire Act’s prohibition of gambling activities is restricted to the types of events enumerated in the statute, sporting events or contests.” In other words, online poker was not within the reach of the Wire Act’s prohibition. The District Court of Appeal agreed with Duvall’s ruling that the 1961 Wire Act does not apply to online poker.
I must mention one caveat. District courts are permitted to disagree with one another until the Supreme Court steps in. However, in this case Judge Duvall’s reasoning is so sound that it is close to irrefutable. There is a well established body of law regarding statutory construction and Judge Duvall followed the procedure to a tee.
Even Representative Goodlatte, who authored one of the online gaming bills in the House, acknowledges the limitations of the Wire Act. “We need to modernize the Wire Act, which is 45 years old, and does not apply to all forms of gambling,” says Goodlatte, adding, “It clearly applies to sports betting.”
Hysteria Is Completely Unfounded
Since this new law does not change what is legal or illegal, the current hysteria is completely unfounded. This legislation attempts to make it more difficult to get money into a site. Besides a few wrinkles that will be the topic of another article, that’s about it.
The statute is primarily no big deal since poker players stopped using credit cards a few years ago and found other ways to get their money into their favorite gaming sites.
I am not saying there won’t be lawsuits construing the meaning of the statute, but ultimately, the statute will only be deemed to affect the method by which online sites are funded.
Correct Analysis
There are a few very insightful people out there correctly analyzing this new legislation. For example, the president of the American Gaming Association, Frank Fahrenkopf is one such person. “This bill did not make anything legal or illegal,” says Fahrenkopf. “What it did was affect the mechanism by which Internet gambling takes place…and there is some question as to whether or not that will be effective.”
Bloomberg correctly reports that “Congress passed legislation that curbs financial payments from banks to offshore Internet casinos that are illegal under US law.”
Consumer Affairs seems to have gotten it right as they report that “The legislation does not criminalize the placing of bets by consumers. Rather than outlawing online gambling, the bill prohibits banks and credit card companies from making payments to online gaming websites… However, it’s unclear just what is covered by the bill. Internet sports betting is plainly outlawed but what about online poker and other popular games?”
I urge our readers to use care in accepting the opinions that one site gets from another site where no legal opinion is being presented. Please, read the statute yourselves. Read the words carefully and think about my analysis. The statute can be found by clicking here. The Unlawful Internet Gambling Enforcement section starts on page 213.
Jurisdiction
Another area I have written about extensively is the area of jurisdiction. Libraries of books have been written on the varied and complex meaning of jurisdiction. One of the simplest meanings of “jurisdiction” is legal power.
For example, a New York court doesn’t generally have jurisdiction (legal power) over a problem in Texas. A federal court doesn’t have jurisdiction over a violation of most state laws. A municipal judge doesn’t have jurisdiction over a felony trial.
Our government doesn’t have jurisdiction to make rules for a company that resides offshore. Our rules do not apply in other countries, as they have their own sets of rules.
This bill prohibits a gaming company from accepting payment that violates US gaming law. Besides the fact that no law makes online poker illegal, all the gaming sites are offshore and not subject to US laws.
A law that tries to control an offshore company is considered a law with no teeth, because it cannot be enforced. In the US, when a law is broken, a person is arrested. The government subpoenas records and a case moves forward. What it means not to have jurisdiction is that US laws do not apply offshore, nor can the US arrest a person in another country nor does our government have subpoena power to command an offshore company to turn over records. NETeller, an online money transfer service, is also an offshore company, not subject to US laws.
The Future
First of all, nothing is going to happen for 270 days. The Secretary and the Board of Governors of the Federal Reserve System have 270 days (after the bill is signed by the president) to come up with enforcement policies and procedures. Those procedures are directed to the behavior of banks and credit card companies. The procedures will be a nightmare.
Representatives of the financial services industry worry about a heavy regulatory burden being placed on banks. “The bill sets up banks to police a social issue,” said Laura Fisher, spokeswoman for the American Bankers Association. “It’s not something we want to encourage.”
The bill passed by Congress could allow regulators to exempt checks and money transfers because they are more difficult to track. “Analyzing 40 billion checks a year would be a largely manual process,” Fisher said.
If checks are not exempt, this would break our banks as it would be too costly to enforce. If checks are exempt, players could simply send a check to an online site. If checks are not within the purview of the law, what about e-checks?
The rules won’t even be figured out for nine months during which time, all the clever sites will have legally circumvented this new law by other legal procedures to fund the sites.
Some Online Sites Are Overreacting
I am surprised to see some online sites overreacting and posturing as if they will pull out of the market. Any company that just pulls out of the market deserves to lose a lot of money because it is receiving bad legal advice.
Offshore companies are not bound by US antigaming laws. But the most persuasive reason why offshore companies shouldn’t pull out is because the laws of online gaming have not changed. A few years ago when the government was beginning to subpoena news networks, offshore sites didn’t pull out because the movement by the government couldn’t affect them. Similarly, a law that directs itself to the mechanism used to enforce current laws, does not change the legal landscape.
Hey Dominique,
Not trying to stomp you out of this thread, but the author of this article is the wife of the owner of Cardplay.com. I do believe she is an attorney though.
The most positive news I read so far.
Thanks.
:la-de-da:
dhayman wrote:Hey Dominique,Not trying to stomp you out of this thread, but the author of this article is the wife of the owner of Cardplay.com. I do believe she is an attorney though.
hehe, nothing to stomp here, is just a discussion thread.
The other one was to give a player group much needed help and exposure.
Stomp away!!
Even though there is a bias towards her reasoning (she is the wife of Cardchat.com owner), her analysis is extremely in depth and is plausible.
What everyone is forgetting is that although the crux of the bill deals with the banking end of things, the bill ALSO explicitly refers to sites that aid and abet, as being criminal, and this is what we do for a living.
Hence, after the bill is signed, although playing poker online may still be legal, our ability to advertise Poker sites that are hosted in the U.S. will clearly not be. So, even though there will be lots to interpret by the legal eagles, us US folks are out of luck from the get go. If you are overseas, a different story entirely.
The legalities of online gambling is still as muddy as they were before this new bill.
““This bill did not make anything legal or illegal,” says Fahrenkopf. “What it did was affect the mechanism by which Internet gambling takes place…and there is some question as to whether or not that will be effective.””
There is also a truckload of jurisdictional issues.
I sincerely don’t feel this new bill has any teeth in it at all.
Yeah, publicly trading companies panic, but they have shareholders to appease. Their business decisions are no longer entirely geared towards the realities of this industry.
dhayman wrote:What everyone is forgetting is that although the crux of the bill deals with the banking end of things, the bill ALSO explicitly refers to sites that aid and abet, as being criminal, and this is what we do for a living.Huh? I haven’t seen any such thing explicitly in this bill. Can you refer me to a page and line number?
dhayman wrote:Hence, after the bill is signed, although playing poker online may still be legal, our ability to advertise Poker sites that are hosted in the U.S. will clearly not be. So, even though there will be lots to interpret by the legal eagles, us US folks are out of luck from the get go. If you are overseas, a different story entirely.
This was my take on things also.Can I add my information onto this please…..
We’re Uk-based so this is a slightly different slant, but all the same….
I have spoken to one the most senior online gaming legal eagles in the industry (no names but this person is a regular at ALL the conferences – you’d recognise the name) today, trying to clarify some of what UIGEA means.
The response I got was basically sit tight and dont panic. At no point was I told that advertising online gambling would be or will become an offence. The whole thing is aimed at the banking system and according to this person the US banks have already told the US government that there isn’t a hope in hell of them having systems in place in the ACH within 270 days to make this anywhere near workable.
The legal landscape has not changed….yet. What happens after 270 days is a different matter but for now wait and see.
Fergie wrote:The legalities of online gambling is still as muddy as they were before this new bill.““This bill did not make anything legal or illegal,” says Fahrenkopf. “What it did was affect the mechanism by which Internet gambling takes place…and there is some question as to whether or not that will be effective.””
There is also a truckload of jurisdictional issues.
I sincerely don’t feel this new bill has any teeth in it at all.
Yeah, publicly trading companies panic, but they have shareholders to appease. Their business decisions are no longer entirely geared towards the realities of this industry.
Couldn’t agree more Fergie.
greek39
WhichBingo wrote:The response I got was basically sit tight and dont panic. At no point was I told that advertising online gambling would be or will become an offence. The whole thing is aimed at the banking system and according to this person the US banks have already told the US government that there isn’t a hope in hell of them having systems in place in the ACH within 270 days to make this anywhere near workable.The legal landscape has not changed….yet. What happens after 270 days is a different matter but for now wait and see.
Far be it for a “Good Ole Boy” down south to argue BUT isn’t there a hyper link section in the bill itself?
I just don’t think you would see so many successful and knowledgable people selling their sites left and right if there was any means for us to continue on.
This is the section which clears ISP’s but states links are not legal or allowed in the US. At least that’s my take.
`(c) Limitation Relating to Interactive Computer Services-
`(1) IN GENERAL- Relief granted under this section against an interactive computer service shall–
`(A) be limited to the removal of, or disabling of access to, an online site violating section 5363, or a hypertext link to an online site violating such section, that resides on a computer server that such service controls or operates, except that the limitation in this subparagraph shall not apply if the service is subject to liability under this section under section 5367;
`(
be available only after notice to the interactive computer service and an opportunity for the service to appear are provided;`(C) not impose any obligation on an interactive computer service to monitor its service or to affirmatively seek facts indicating activity violating this subchapter;
`(D) specify the interactive computer service to which it applies; and
`(E) specifically identify the location of the online site or hypertext link to be removed or access to which is to be disabled.
Do a query here to find the bill:
http://thomas.loc.gov/home/c109query.htmlBlackjackInfo wrote:Huh? I haven’t seen any such thing explicitly in this bill. Can you refer me to a page and line number?
Yeah, that’s the part:P.239 of the bill clearly points this out, and it was interpreted that way exactly by Prof. Rose, the famous gambling legal mind.
You couldn’t pay for a better opinion than Prof. Rose either…
Here is the column:
http://www.gamblingandthelaw.com/columns/2006_act.htmThis is his opinion on the matter as has been quoted on this forum in a different thread already:
The greatest danger here would seem to be with affiliates. Any American operator can be easily grabbed. This includes sites that don’t directly take bets, but do refer visitors to gaming sites. If the affiliate is paid for those referrals by receiving a share of the money wagered or lost, it would not be difficult to charge the affiliate with violating this law, under the theory of aiding and abetting. Being a knowing accomplice and sharing in the proceeds of a crime make the aider and abettor guilty of the crime itself. The federal government could also charge the affiliate with conspiracy to violate this new Act.
Nonsense
greek39
