Okay, you\'re \"really, really clear\" now, Phil, except for the law
 

Phil, your reasoning ignores the language of the Act.

First, you opine that "Just to be really, really, clear on this...the act of two people playing poker against each other constitutes an unlawful bet or wager." Really ? What part of this law or any federal law makes all playing poker over the Internet "really, really," clearly unlawful .... Bootstrap Phil ?

Next, you ignore the structure of the Act:

Section 5363 is the "prohibition"

Section 5362 expressly exempts three types of businesses from being within the definition of "business of betting or wagering". If you are claiming that one of these three types of businesses includes poker sites, then thanks for the express exemption and on to Section 5367.

Nevertheless, you go ahead and assume that 'Sites that provide a poker service fall under Sec 5367".

(I am missing which of the three types of businesses EXEMPTED by Section 5362(2) you are assuming is a poker site and is expressly exempt from the Act, I do not share your assumption that Section 5362(2) provides poker with an express exemption.... so Section 5367 would not apply to take away the express exemption.

Section 5367 only applies to three types of businesses, which are otherwise expressly exempt from Section 5363, the prohibition.

(Again, thanks Phil. You seem to prove the argument that a business which is NOT "engaged in the business of betting or wagering" falls outside of Section 5363. Otherwise why would the drafters hang an express exemption for three types of businesses upon their exclusion from that phrase's reach ?)

Assuming nevertheless that poker sites ARE exempted expressly, why do you keep skipping over the Section 5367 language about "actual knowledge and control of bets and wagers" ?

You may have something useful here, Phil ... if a site IS exempted by Section 5362(2), which you assume as a basic premise, then that exemption is NOT taken away if the Players and not the site, have control of the game's bets and wagers .... which sounds like poker to me ... you know, players making bets against each other and the House not making any bets.

Similarly, if a poker site tidies up its Internet Website, and relies upon the downloaded client, you have a good formula for an Express Exemption, so long as all the website does is offer the client for a download.

Finally, you again ignore the language in Section 5367 which only removes the express exemption if "unlawful" bets or wagers are involved. If poker is not unlawful, then the exemption through Section 5362(2) remains for whatever businesses are covered therein...... which you assume means poker. No bootstrap here Phil, this Act, however you want to torture it, does NOT make internet poker illegal.

Re: Few seem to have noticed how the new law \"fixes\" the Wire Act
 

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Also note the definition of a bet or wager. This will have an effect on the interpretation of the Wire Act by the courts ( as Stellar pointed out)

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I certainly did not intend to say that and I don't think it is true.

Do you really think sites \"control\" what players bet or wager ?
 

I don't get your drift, Phil. You "think operating the software that allows for betting comes right under this definition" of control. Pretty fatalist of you. Ever hear of free will ?

Does Mason "control" what you write in your posts because he offers the access to this forum ? Don't you control what words you spew forth ?

Maybe it is Microsoft which you think "controls" what you write because you are using a Windows operating system ?

Re: Do you really think sites \"control\" what players bet or wager ?
 

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I don't get your drift, Phil. You "think operating the software that allows for betting comes right under this definition" of control. Pretty fatalist of you. Ever hear of free will ?

Does Mason "control" what you write in your posts because he offers the access to this forum ? Don't you control what words you spew forth ?

Maybe it is Microsoft which you think "controls" what you write because you are using a Windows operating system ?

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Valid points.

Re: Do you really think sites \"control\" what players bet or wager ?
 

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I don't get your drift, Phil. You "think operating the software that allows for betting comes right under this definition" of control. Pretty fatalist of you. Ever hear of free will ?

Does Mason "control" what you write in your posts because he offers the access to this forum ? Don't you control what words you spew forth ?

Maybe it is Microsoft which you think "controls" what you write because you are using a Windows operating system ?

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Actually, I said far more than that. Thanks for quoting my position accurately and honestly.

So, by your own reasoning, sports books or online casino could claim exemption under "interactive computer services" and then claim they have no control over their punter's betting and wagering (because of free will, and all that [img]/images/graemlins/grin.gif[/img]). Perhaps you've found a loophole?

I'm writing a response to the rest of your (less ridiculous) points now.

Re: Few seem to have noticed how the new law \"fixes\" the Wire Act
 

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His analysis is accurate that playing internet poker appears to be clearly illegal in some States. However, the Act still does require that a site be engaged in the "business of betting or wagering" to fall within its Section 5363 purview. This is a similar issue to the Wire Act not covering "poker'. A potential prosecution would have to cover why the legislation mentions sportsbooks and casinos specifically, but not poker, and adopts a "business model" criteria for coverage which does not cover purely poker sites.

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If I were going to place an illegal wager I would lay odds against this theory holding up in court [img]/images/graemlins/wink.gif[/img]. But I'm not qualified to give a real legal opinion so I won't.

That said, the argument could still have an important practical effect. There is risk involved for the Government in prosecuting a pure poker site. Allowing a judge to interpret this law creates the possibility of something bad happening that would terribly embarrass everyone concerned. Once again we seem to be coming back to the idea that the early targets will be sports bookmakers. Poker may once again move to the back of the list.

Re: Few seem to have noticed how the new law \"fixes\" the Wire Act
 

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The Executive branch has repeatedly stated that the Wire Act covers poker and casino games as well as sports betting.

So far the courts have rejected this theory. Therein lies a big practical problem for those who wish to prosecute offshore poker sites. The judge might dismiss the case without even hearing the evidence and create a damning precedent in the process. Then the Government might find that they couldn't even intimidate anyone anymore.

Everyone says the new law didn't change the legal status of online poker but as a practical matter this is not true for the sites. Ineffectual state laws against online poker have been de facto converted into Federal felonies. State XYZ may have a completely neglected law saying that operating an online poker game is a misdemeanor punishable by a $1000 fine. Maybe the DA has real crimes to fight and wouldn't prosecute even if the case was gift-wrapped for him.

Doesn't matter. The Feds can still bring Federal charges carrying a 5-year sentence against the site if they offer service in this state. A real law the judge can't ignore. No more fretting over whether the Wire Act will stand up against poker in court.

I think this is a significant reason why some of the sites are reacting as they are.

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They are exposed to states decriminalizing it and rendering it obsolete if they prosecute in this manner, well, whether they do or not. Correct? Go North Dakota!!

Re: Few seem to have noticed how the new law \"fixes\" the Wire Act
 

Firstly, the term "business of betting or wagering" is not defined in the act, nor was it defined in the original Wire Act. However, I see no basis for why poker would not be included. Previously, courts have failed to include it solely on the language that states "contest of chance", which they struggled over, and eventually took strictly to refer to sports betting. See the text of those Wire Act rulings. The new language is "game subject to chance", a very important difference.

Even forgetting that, 5362(2) can easily be argued to apply to poker sites, it is very clear language. With regard to this, you asked:

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Except, Phil .... Could you explain how a poker site is somehow involved in the EXEMPTION provided by Section 5362(2). I kind of thought that exemption only applied to financial institutions, interactive computer services, or telecomunications services.... which of these is a poker site?

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The relevant passage is:

(2) BUSINESS OF BETTING OR WAGERING- The term `business of betting or wagering' does not include the activities of a financial transaction provider, or any interactive computer service or telecommunications service.

A poker site is clearly covered by the definition of "interactive computer services" in the act, defined by section 230(f) of the (updated) Communications Act of 1934 (47 U.S.C. 230(f)), which states:

(2) INTERACTIVE COMPUTER SERVICE.--The term ''interactive
computer service'' means any information service, system, or access
software provider that provides or enables computer access by multiple
users to a computer server, including specifically a service or system that
provides access to the Internet and such systems operated or services
offered by libraries or educational institutions.

The case law deciding what is classified as an "Interactive Computer Service" is very broad, and the courts have repeatedly held that any organized system that "enables computer access by multiple users to a computer server" fits this definition.

Thus, the DOJ can nab you for providing an "interactive computer service", to which 5367 applies. I'm not sure what your point is here. This section was included specifically to stop ISPs and others from providing gaming services, and it can be equally applied to anyone using a server to allow "unlawful bets or wagers".

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Section 5363 is the "prohibition"

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Yes, and comes into force if 5362(2) and 5367 applies.

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...the language in Section 5367 which only removes the express exemption if "unlawful" bets or wagers are involved. If poker is not unlawful, then the exemption through Section 5362(2) remains for whatever businesses are covered therein...... which you assume means poker.

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I agree completely, and if you read what I said carefully, and I said as much. Perhaps my language wasn't clear.

I do suggest that this legislation will change the court's currently borderline (and nearly arbitrary) interpretation that the Wire Act doesn't apply to online poker. In previous judgements they have looked to the legislature for guidance, and finding none, have gone for an extremely strict interpretation of the exact language. But that is pure speculation on my part.

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(I practiced law for almost 20 years, and have tried cases and argued statutory interpretations in appellate courts at the state and federal level, variously for the government, gaming clients, and other people facing regulatory issues, but I did NOT win every argument, so call me "incompetent" if it makes you feel better.)

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I do not have a law degree, but I can read plain text, and I do run my own (not internet related) business. I know for a fact that you have given misleading and reckless legal opinion to affiliates with no concern for the consequences, in order to get them to work for your site. I've linked it in your TruePoker thread. That concern for money over basic integrity is why I'm having a go at you.

The fact is that some of your arguments just don't stand up to scrutiny. Nor do they stand up to common sense. I challenge you to explain why the biggest sites (with excellent legal advice) have decided to cut 3/4 of their revenue by dropping US players, if this law has no effect on the legality of running a poker site.

Re: Few seem to have noticed how the new law \"fixes\" the Wire Act
 

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I challenge you to explain why the biggest sites (with excellent legal advice) have decided to cut 3/4 of their revenue by dropping US players, if this law has no effect on the legality of running a poker site.

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I'm sorry, but this argument is just fundamentally flawed. You have no way of knowing how "excellent" Party's legal advice is. For one thing big companies lose legal cases all the time. Big tabaco and many, many, many industries had "excellent legal advice" and misteped time and time again. MLB had "excellent legal advice" and lost to a small company called CDM over who owns baseball stats. Secondly, Party has made a lot of bad decisions throughout it's history, and we all know that. Thirdly, as a listed company, there are all kinds of reasons why Party might have pulled out. We don't know that the reasons are good, sound, or even based on the "excellent legal advice." It could be as simple as their founders not wanting to take a chance of getting arrested in the U.S., even if they thought most likely they could win their case. It could be not wanting to deal with potential investor issues down the road. Finally, I always hate the argument "A has smart lawyers and they're doing step B, so obviously step B is correct." MAke your own logical arguements, and don't just say "if Party is pulling out, pulling out is the correct legal thing to do." I always hate that line of argument, because it gives no possibility to a big corporation being wrong, when in fact they are wrong ALL the TIME, probably as much as they are right (in PArty's case).

Re: Few seem to have noticed how the new law \"fixes\" the Wire Act
 

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Sites that continue to accept US players ARE BREAKING THE LAW. If someone says otherwise, they are a liar. The text you read above is the reason Party and others with actual lawyers on their staff have pulled out of the US market, and quickly.


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These sites are not breaking the law. They are foreign companies on foreign soil. What do United States laws have to do with them?

There are some Iranian laws that United States citizens break every day. As long as they are broken on US soil, what is the difference? Anyone ever read any books by Salmon Rushdie? You can be executed for that. There is zero chance that the US would extradite anyone to Iran for that crime, and the same zero chance that Costa Rica or Antigua will extradite someone to the US to face any charges.