SUMMARY OF THE BILL (SUPER-QUICK READ)

[Hock_]

Here are the highlights as I see them. [Disclaimer: Although I was a lawyer at a top DC firm for 10 years, and worked on cases involving statutory interpretation all the way up the the US Supreme Court, I am -- at least was until 15 minutes ago, haha -- not a lawyer, I am (was) a professional poker player. Plus I've only had this text in front of me for like 30 minutes. This is therefore not intended to serve as legal advice.]

1. The Act, S.5363, prohibits anyone "engaged in the business of betting or wagering" from knowingly "accept"ing VIRTUALLY ANY type of credit, electornic funds transfer, check, or other "financial transaction" associated with "unlawful Internet Gambling."

2. "Interactive Computer Services" (s. 5365(c)): Only resposnible for disabling access to a site after notice from authorities specifying exactly what needs to be shut down, including the specific "hypertext link".

3. PENALTIES:
(A) CIVIL: On top of any state remedies, federal courts have jurisdiction to enjoin any violating transactions and to prevent future violations.

(B) CRIMINAL: Fines Under Title 18 (I don't know what that says) AND/OR up to 5 years in prison.

4. "Circumvention" (S. 5367): ISPs and financial institutions can't knowingly allow transactions/activity that violate the Act IF they "control" the bets or wagers.

ANALYSIS

First, it sure seems broad with respect to the types of financial transactions covered. Not good. Much depends on exacatly what the Fed's regs say, but it has broad authority if it wants to use it.

Second, the ISP-blocking piece seems relatively tame, applying only under specific circumstances, only on the instigation of federal authorities (no self-monitoring/enforcement requirement), and only to hyperlinks specifically identified by authorities (how'd ya like to have the job of constantly finding those links and telling ISPs to shut them down?). I'd be surprised if this ended up being a real problem, but admit I know virtually nothing about the technology involved in monitoring/disabling access to a site.

Finally, what I find particularly interesting/troubling is that the Act at least arguably applies to at least professional poker players, because it applies to the "accept"ance of any of the covered financial transactions by any "person engaged in the business of betting or wagering" (as long as the bet/wager is illegal under federal/state law; query whether playing poker as we do is in fact illegal under federal/state law). "Engaged in the business of betting or wagering" is not limited to the sites, at least not in this legislation (it may have been in case law somewhere, but I doubt it). Which in turn means that simply by "ACCEPTING" a cash-out using virtually any method currently available, at least "pro" players (i.e., those "in the business of betting or wagering") could be violating a statute that carries with it substantial civil penalties and up to a 5 year jail term. All of that said, similar language was included in other proposed bills and no-one seemed to think it applied to the players, so maybe they know something about this point that I don't. Please tell me they know something I don't.

[elffaw]

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(query whether playing poker as we do is in fact illegal under federal/state law)

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more on this, please.

[bkholdem]

Can anyone clarify the ISP/hyperlink language?

Does this mean that they don't want to allow pokersitex.com links on the internet but as long as you know the address or have the client downloaded you can access it without being blocked?

[MicroBob]

interesting analysis. thanks.

It seems clear that their intent is to NOT go after the actual gamblers, but rather those who run the websites or anyone who might accept bets on behalf of the websites.

But I agree that if broadly interpreted it could somehow get twisted around to include full-time gamblers in the 'business' of betting or something like that.


I'm hoping there is language in there that specifically contradicts this and perhaps more directly links it EXCLUSIVELY to those who run the websites or accept bets ON BEHALF OF the website or something like that.
And that those who are merely 'playing the games' or 'placing the sportsbets' are not subject to prosecution.


I'm not going to try to scan every word of that thing to try to figure out if such language potentially exists because I would be highly likely to get it all backwards and wrong anyway.

[DrewOnTilt]

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I'm not going to try to scan every word of that thing to try to figure out if such language potentially exists because I would be highly likely to commit hari-kari rather than accept that the leaders of my country can't put together a clear and concise document.

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FYP

[mlagoo]

Hock,

Here is the text of a link interpreting the same "business" language under HR4411 by a poster on these forums.

"The starting point in interpreting the bill is recognizing that the criminal penalties are limited to those engaged in a “gambling business,” which is defined as the “business of betting or wagering.” At first glance, that phrase may appear to include the professional poker player. But based upon cases interpreting similar language in prior legislation, it appears clear that the individual poker player is not included, a fact confirmed by the recent debate in the House. Thus, the criminal penalties are meant to apply to individuals who operate, or facilitate the operation of, internet gambling sites. Specifically, individuals in the “business of betting and wagering” face up to five years of imprisonment if they use a communication facility to: (a) transmit bets or wagers; (b) transmit information assisting in the placing of bets or wagers; or (c) accept credit or any form of funds or proceeds in connection with a bet or wager.

One immediate question is whether these penalties apply to “affiliates,” on the theory that they provide “information assisting in the placement of bets and wagers.” In other words, an aggressive prosecutor might argue that, by setting up a new account with a bonus or rakeback arrangement, the affiliate is facilitating the gambling (or even acting as an accomplice). This position, though, is almost certainly not supported by any affirmative statements in the legislative history. Indeed, I frankly doubt whether the drafters of this legislation had any awareness that affiliates even exist. "


So I just wanted to say that it's doubtful (or at least this fellow seems to believe it's doubtful) that players themselves can be prosecuted.

http://www.internettexasholdem.com/poker...nforcement-act/

[Hock_]

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"The starting point in interpreting the bill is recognizing that the criminal penalties are limited to those engaged in a “gambling business,” which is defined as the “business of betting or wagering.” At first glance, that phrase may appear to include the professional poker player. But based upon cases interpreting similar language in prior legislation, it appears clear that the individual poker player is not included, a fact confirmed by the recent debate in the House. Thus, the criminal penalties are meant to apply to individuals who operate, or facilitate the operation of, internet gambling sites. Specifically, individuals in the “business of betting and wagering” face up to five years of imprisonment if they use a communication facility to: (a) transmit bets or wagers; (b) transmit information assisting in the placing of bets or wagers; or (c) accept credit or any form of funds or proceeds in connection with a bet or wager.

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Thanks for the link. I wish I knew what those cases are. I'll poke around and see what I can find.

[x2ski]

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2. "Interactive Computer Services" (s. 5365(c)): Only resposnible for disabling access to a site after notice from authorities specifying exactly what needs to be shut down, including the specific "hypertext link".

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the ISP-blocking piece seems relatively tame, applying only under specific circumstances, only on the instigation of federal authorities (no self-monitoring/enforcement requirement), and only to hyperlinks specifically identified by authorities (how'd ya like to have the job of constantly finding those links and telling ISPs to shut them down?). I'd be surprised if this ended up being a real problem, but admit I know virtually nothing about the technology involved in monitoring/disabling access to a site.

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I hate to ask this question, but is it possible that the authors weren't using the correct terminology and actually intended for URLs to be blocked? I mean, removing text-links... How stupid is that?

I fearfully assume that if so, this is something that they can change when they find out they meant URL-blockage, and not link-blockage.

Someone please tell me I'm an idiot.

[DrewOnTilt]

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Someone please tell me I'm an idiot.

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I don't think that you are an idiot. I think that anyone and everyone that had anything to do with this language being inserted into a port security bill is an idiot. But that's beside the point.

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is it possible that the authors weren't using the correct terminology and actually intended for URLs to be blocked? I mean, removing text-links... How stupid is that?

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I think that you are right in that the original intention was probably to block URLs and not remove hyperlinks. However, this may be a loophole, and not something to be feared. Others more in the know may have to chime in here.

[pshabi]

Wow, I just got home from a LONG ASS day of work and I am just reading this now and crying in my beer. I appreciate the summary here, but I'd appreciate if someone could just throw me a bone and answer this:

What is a time frame/range that we can expect this to actually become law? When do we need to withdraw by to get our money safely?

Prizes may be awarded. Thanks.