#144 ©Copyright 2001 all rights reserved worldwide. Gambling and the Law® is a registered trademark of Professor I. Nelson Rose, Whittier Law School, Costa Mesa, CA.

Is gambling on the Internet legal?

Some state and federal law enforcement officials declare flatly, “yes, it’s all illegal.” Yet with hundreds of websites taking billions of dollars in wagers each year, fewer than 25 people have ever been prosecuted for online gambling. Most were bookies who were also taking sports bets by telephone. A few were unusually foolish.

For example, a Pennsylvania operator settled a criminal case by promising the Attorney General of Missouri that he would stop taking bets from people in Missouri. He continued to take bets from Missouri, and ended up pleading guilty to a misdemeanor.

So, is Internet gambling legal for those of us who are not taking bets by phone or breaking agreements with prosecutors?

Everyone in the United States and Canada is subject to at least two sets of laws, federal and state/province – and an additional set of law if they are on tribal land. There are also laws on the city and county level, but these are usually of no consequence, except to big operators who are openly taking bets in that city or county.

Federal governments are not usually concerned with gambling. They do care about organized crime. So there are federal laws in the United States which make it a crime, under some circumstances, to take a bet, if you are in the gaming business.

This means that players are not violating any federal laws by merely placing bets. Senator Jon Kyl’s first draft of his proposed Internet Gambling Prohibition Act would have made betting a federal crime. But, the U.S. Department of Justice, remembering the bad old days when it had to enforce the earlier Prohibition on alcohol, stated publicly that it did not want to go after $5 bettors. So, today, no one is even proposing making it a federal crime to merely place a bet.

Internet operators, especially those who do not have licenses from foreign countries, may be violating U.S. federal laws by taking bets online. The major statute, the Wire Act, was passed by Congress 35 years ago to help the states enforce their anti-bookmaking laws. The Wire Act only applies to individuals in the business of gambling who use a wire, like a phone line, which crosses a state line. Gambling businesses that conduct 100 percent of their activities inside a single state do not violate the Wire Act.

There are other federal anti-gambling laws. But most involve committing felonies under state laws.

The major weakness of the Wire Act, besides the fact that it was written long before the Internet was invented, is that it was designed to go after illegal bookies. Betting on a sports event or horse race is clearly covered. But, a good argument can be made that lotteries and casinos do not fall under the Wire Act, even if they are conducted interstate or internationally.

But there are still laws of the states, provinces and territories. Federal governments may only be interested in organized crime. But states are often interested in saving your souls.

Every state has what is known as the “police power.” This is the right to protect the health, safety, welfare and morals of its citizens. Of course one man’s moral outrage is another man’s hobby.

Still, every state makes most forms of gambling a crime. Almost half the states specifically make it a crime to place a bet.

For example, in California it is a crime to bet at a banking or percentage game, meaning any casino game, outside of an Indian casino. It was also a crime to make, take or even record a bet on a sports event or horse race, outside of a licensed track or OTB. In August, 2001, Gov. Gray Davis signed a law making it legal for Californians to bet by phone or computer on horse races conducted anywhere in the world.

It is still a crime for someone in California to bet on a sport events. No ethical lawyer would ever tell you to break the law. But I have not found one reported case, in the history of the United States and Canada, of a player being arrested for making a bet on the Internet.

It also does not mean that betting on the Internet is safe. You might not be committing a crime, but how about the operator? Is an unlicenced operator going to run an honest game?

[Professor Rose can be reached at his Website: www.GamblingAndTheLaw.com]

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