Legality
United States
The United States Court of Appeals for the Fifth Circuit ruled in November 2002 that the Federal Wire Act prohibits electronic transmission of information for sports betting across state lines but affirmed a lower court ruling that the Wire Act “‘in plain language’ does not prohibit Internet gambling ‘on a game of chance.'”
Some states have specific laws against online gambling of any kind. Also, owning an online gaming operation without proper licensing would be illegal, and no states are currently granting online gaming licenses.
In March 2003, Deputy Assistant Attorney General John G. Malcolm testified before the Senate Banking Committee regarding the special problems presented by online gambling. A major concern of the United States Department of Justice is online money laundering. The anonymous nature of the Internet and the use of encryption make it especially difficult to trace online money laundering transactions.
In April 2004 Google and Yahoo!, the internet’s two largest search engines, announced that they were removing online gambling advertising from their sites. The move followed a United States Department of Justice announcement that, in what some say is a contradiction of the Appeals Court ruling, the Wire Act relating to telephone betting applies to all forms of Internet gambling, and that any advertising of such gambling “may” be deemed as aiding and abetting. Critics of the Justice Department’s move say that it has no legal basis for pressuring companies to remove advertisements and that the advertisements are protected by the First Amendment. As of April 2005, Yahoo! has provided advertising for “play money” online gaming.
In August 2004, Casino City, an online portal for internet gambling sites, sued the US Department of Justice. The complaint alleged, inter alia, that the website’s business – promoting internet gambling – was legal, and requested a declaration from the court that its business was protected by the First Amendment. The U.S. District Court for the Middle District of Louisiana dismissed the case in February of 2005.
In its opinion, the District Court wrote,
It is well-established that the First Amendment does not protect the right to advertise illegal activity… The government’s interest is specifically directed towards the advertising of illegal activity, namely Internet gambling… Furthermore, the speech in which the plaintiff wishes to engage is misleading because it falsely portrays the image that Internet gambling is legal… Because plaintiff’s speech concerns misleading information and illegal activities, it does not fall within the speech that is protected by the First Amendment.
The US Court of Appeals, 5th Circuit, dismissed Casino City’s appeal in January, 2006.
In February 2005 the North Dakota House of Representatives passed a bill to legalize and regulate online poker and online poker cardroom operators in the State. Testifying before the State Senate, Nigel Payne, CEO of Paradise Poker, pledged to relocate to the state if the bill became law. However, the measure was defeated by the State Senate in March 2005. Rep. Jim Kasper, who sponsored the 2005 legislation, plans to introduce similar bills in the 2007 North Dakota legislative session.
In July 2006, David Carruthers, the CEO of BetonSports, a company publicly traded on the London Stock Exchange was detained in Texas while changing planes on his way from London to Costa Rica. He and ten other individuals had been previously charged in a sealed indictment with violations of US Federal laws relating to illegal gambling. While as noted above, a United States Appeals court has stated that the Wire Act does not apply to non-sports betting, the Supreme Court of the United States previously refused the hear an appeal of the conviction of Jay Cohen, where lower courts held that the Wire Act does make it illegal to own a sports betting operation that offers such betting to United States citizens.
The BetOnSports indictment alleged violations of at least 9 different Federal statutes, including 18 USC Sec. 1953 (Operation of an Illegal Gambling Business). Carruthers is currently under house arrest on a one million dollar bail bond.
In September 2006, SportingBet PLC reported that its chairman, Peter Dicks, was detained in New York City on a Louisiana warrant while traveling in the United States on business unrelated to online gaming. Louisiana is one of the few states that has a specific law prohibiting gambling online. At the end of the month, New York dismissed the Louisiana warrant.
Also in September 2006, just before adjourning for the midterm elections, both the House of Representatives and Senate passed legislation (as an amendment to the unrelated Safe Port Act) that would make transactions from banks or similar institutions to online gambling sites illegal. This differs from a previous bill passed only by the House that expanded the scope of the Wire Act. The passed bill only addresses banking issues. The act was signed into law on October 13, 2006 by President George W. Bush, and there is a provision for a 270-day period to develop enforcement measures. At the bill-signing ceremony, Bush never mentioned the Internet gambling measure, which was supported by the National Football League and opposed by banking groups.
Other countries
Various forms of online gambling are legal and regulated in many countries, including most members of the European Union and several nations in and around the Caribbean Sea.
The government of the island nation of Antigua and Barbuda, which licenses Internet gambling entities, made a complaint to the World Trade Organization about the U.S. government’s actions to impede online gaming. The Caribbean country won the preliminary ruling but WTO’s appeals body somewhat narrowed that favorable ruling in April 2005. The appeals decision held that various state laws argued by Antigua and Barbuda to be contrary to WTO agreements were not sufficiently discussed during the course of the proceedings to be properly assessed by the panel. However, the appeals panel also ruled that the Wire Act and two other federal statutes prohibiting the provision of gambling services from Antigua to the United States violated the WTO’s General Agreement on Trade in Services, or “GATS”. Although the United States convinced the appeals panel that these laws were “necessary” to protect public health and morals, the asserted United States defence on these grounds was ultimately rejected because its laws relating to remote gambling on horse-racing were not applied equally to foreign and domestic online betting companies, and thus the United States could not establish that its laws were non-discriminatory. Although the Dispute Settlement Body of the WTO recommended that the United States bring the three federal laws into compliance with the GATS, as of the third quarter of 2006 the United States and Antigua and Barbuda disagreed on the status of the United States’ compliance. The dispute has recently been referred back to a WTO panel to assess the status of compliance.
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