2006 – #5 © Copyright 2006, all rights reserved worldwide. Gambling and the Law® is a registered trademark of Professor I Nelson Rose, Whittier Law School, Costa Mesa, CA

This column was among the first to break the news that the Washington State Legislature intended to make playing poker online a felony.

On June 7, that became the law.

But in an interview with Rick Day, Director of the Washington State Gambling Commission, I was able to confirm that regular players have no reason to fear going to prison.

Rick explained that the law was primarily designed to do three things:

1) Prevent the State Lottery from offering games on the Internet;

2) Clarify that all online gambling is illegal; and

3) Give the Commission and other Washington law enforcement authorities additional weapons in their fight against Internet gambling operators.

I believe the Legislature did not merely clarify existing law, but actually expanded the anti-gambling statutes to cover poker and other forms of gambling. But it makes no difference now. And it is always better to have a law that clearly spells out what is and is not covered, rather than have to fight about it in court.

The new felony law will give the Washington state government more tools to go against operators. Even if Internet poker had fallen under the pre-June 7th law, it was only a gross misdemeanor. Other states are usually willing to help with felony investigations. But requests for out-of-state search warrants on misdemeanor criminal charges are given a low priority.

Rick confirmed my analysis that making gambling a state felony brings in the powerful, federal anti-racketeering statutes. Specifically RICO, Racketeered Influenced and Corrupt Organizations, can now be used to seize all of the assets of an illegal gambling operation.

It should be noted that the federal government has, so far, shown little interest in using RICO to go after foreign operators. That may change, now that Washington State has made Internet gambling a felony. But the RICO statutes still have weaknesses, including not stating explicitly that they can be used against foreign licensed operators.

As for players – merely being an online poker player does, theoretically, run a risk of a felony conviction. However, Rick made it clear that there is not going to be an active campaign against regular players.

If players’ names appear in an operator’s seized records, it is possible they could receive warning letters, reminding them that betting online is now a felony. If a player’s name reappears again, Rick said, charges might be filed.

Personally, I doubt the state will ever send out many of those letters. And I doubt mere players will ever be charged, unless they ignore repeated warnings.

Although playing now can be treated as a Class C felony, it is wrong to say that gambling is now equivalent legally to a sex offense. First offenders under the new anti-gambling law face only a maximum of 90 days in county jail, not years in prison. And Rick confirmed that he would expect first-time convicted players to receive no jail time at all.

Still, no one wants to have a felony conviction on his record. But even here, the state has great discretion, and would probably only charge even dedicated players with a misdemeanor.

I don’t want to give the impression that I think this law is a good idea. But I do think players should know that they will never see the inside of a prison for merely making bets online

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© Copyright 2006. Professor I Nelson Rose is recognized as one of the world’s leading experts on gambling law. His latest books, Gaming Law: Cases and Materials and Internet Gaming Law, are available through his website, www.GamblingAndTheLaw.com.