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An Illegal “Prohibition” Revisited
 
By Sherman Ellison

When asked to write a feature article on Internet Casino Gambling and legislative efforts to ban it, I had no idea what the state of the law was and what those double-speak, moralistic, starch-necked congressional politicians were trying to do.

There were some specific questions that needed to be answered and I was asked to use my legal experience to ferret out and evaluate the answers. I had no idea who Senator Kyl [Arizona], Congressman Goodlatte [Virginia], and Congressman Leach [Iowa], were, what their responses would be, or for that matter, what they were really trying to accomplish.

I have been interested in casino gambling for years. By profession, I am a criminal defense attorney actively practicing in Los Angeles, California for over 31 years.

The first thing I did was to ask the following questions: [1] Why do they think their bill is important? [2] What they hope to accomplish by it? [3] Isn't this "Prohibition" all over again? [4] Can the bill really be enforced in foreign countries? [5] Wouldn't it be better to regulate, rather then to forbid? And, [6] Would they be willing to review ideas on how they could actually regulate the Internet Casino Gambling industry in a win-win scenario?

Next, I went into the Internet and downloaded these legislators' bills. Senator Kyl's and Congressman Goodlatte's bills are specifically designed to be a "prohibition" on all forms of Internet Casino gambling. Another more subtle, but equally insidious approach was Congressman Leach's bill, which is designed as a "prohibition" on the use of your credit cards and checking accounts to participate in Internet Casino gambling. I also reviewed a good number of congressional sessions' transcripts, press-statements and news accounts/interviews by these representatives. I began to think about this situation and asked myself questions . . . if playing poker and blackjack are legal in casinos all over the United States [and the rest of the world for that matter];

1. What is the logic of making it illegal to do the same thing, merely because one is using the Internet? 2. How can they actually expect people to abide by such an unconstitutional prohibition? 3. Aren't they going to make criminal offenders out of otherwise normally law-abiding citizens? 4. Aren't they missing a tremendous opportunity to generate income for government by taxation, licensing fees, use fees or any other name they wish to use for charging fees to the Internet Casino entities for permitting them to conduct their business? 5. Is it that these legislators do not like the Internet or is it that they do not like "gambling"? But, what about horse racing, dog racing, Indian Casinos, lotteries, bingo, why aren't they trying to prohibit their existence?

I had to speak with the legislators and hear for myself their reasoning.

I telephoned Congressman's Goodlatte's office in Washington, D.C. I spoke with Michelle Semones, his press secretary, a number of whose press releases I had already read. Ms. Semones stated that Congressman Goodlatte "would like to make all gambling illegal, although we know we can't. We want to make it more 'difficult' for people use the Internet to participate in Casino type gambling."

Ms. Semones stated that the "Wire Act," enacted in 1961, prohibits people from using telephone wires to gamble. That is, "the Wire Act makes gaming over telephone lines illegal." She stated the primary purpose of the Wire Act was to make access to casino gambling illegal and that the federal authorities would only be after the operators of the internet Casino gambling, not actually the players themselves.

There were many other comments Ms. Semones relayed to me, but first I want to give you my read on the "Wire Act".

The Wire Act, which is a federal statute, cited as Title 18 U.S.C. _¸ 1084, essentially states that gambling-business entities can not use the telephone lines to receive bets or wagers for "sporting events." Intrastate, [within a state], receiving of bets is not prohibited by the Wire Act; however interstate, [between states], and foreign country gambling via telephone lines are federal crimes.

Individual bettors; common players such as you and I, are not criminalized by the statute, only bookmaking businesses are capable of being prosecuted. It should be noted that the only reported cases dealing with it relate to "bookies" using the telephone to take wagers on races and sporting events. To date there have been no other cases of Wire Act gambling reported that I was able to locate. The statute also thereby implicates the Internet, since telephone lines are typically used to connect to a portal.

The congressional attempts by Senator Kyl and Congressman Goodlatte are designed to specifically include and prohibit all forms of Internet Casino gambling and to work in concert with the "Wire Act". I suspect that the "Internet Gambling Legislation" is also contemplating adding microwave and satellite means of accessing the Internet as being prohibited.

Continuing on with additional comments by Ms. Semones in response to the above six (6) questions, she stated that states' Attorneys' General had no way of enforcing gambling laws if, for instance, that state, [such as Virginia for example], did not have any Casino gambling in it. Internet Casino gambling was harmful to consumers, who would become indebted; the age of the participant would be unknown or difficult to verify; and, why regulate the Internet Casino industry when it is already illegal to conduct such business or participate in it?

To date, I have been unable to get any representative from Senator Kyl's office to speak with me, although I have made telephone contact with Steve Higgins, Esq. of the legislative subcommittee and Andrew Wilder, press secretary, both Sen. Kyl's representatives. After I outlined the specific questions that I'd be asking them, they both told me that they would get back to me. To date there has been not substantive conversation with them. Therefore, I have no real idea what their answers would be.

I next spoke with Congressman Leach's legislative assistant, Amanda Keuter. Ms. Keuter said Congressman Leach believes their legislation, [to prohibit the use of credit cards and checking accounts to participate in Internet Gambling], is an "enforcement mechanism to use in the fight against illegal gaming transactions. Our bill makes it illegal to use financial instruments, like checks and credit cards in the process of making a gaming wager." For example, if a financial institution knew payment was going for Internet gambling, then that institution would be guilty of a crime, along with the player. Ms. Keuter stated their bill is "merely giving the Justice Department another enforcement mechanism of another crime"... a bonus crime!

When I suggested many reasons for "regulating" the industry, rather than a "prohibition" on the industry, Ms. Keuter stated: "The Congressman, [Leach], does not care for this type of gambling".

I suggested to her that by combining Sen. Kyl'ss and/or Congressman Goodlatte's bills with Congressman Leach's bill, the combination would create a modern day "prohibition". Ms. Keuter responded, "That is true." I discussed the fact that this type of "prohibition" legislation had failed in the past, and asked why the congressman thought that this type of moralistic legislation might be honored in the future? Ms. Keuter was unable to answer.

I suggested to her that by imposing such a "prohibition" as opposed to "regulation", [a] otherwise law abiding citizens would become criminal offenders, [b] the existing "bookie network" would become more active and, in fact, [c] new "bookies" would emerge to handle those players who would want to use their home or business computers to Internet gamble. Is it Congressman Leach's intention to stop individuals and companies from participating in those activities?

In conclusion, it is clear to me that these parochial, federal legislators are attempting to "ban" Internet Gambling, by initiating a modern day "prohibition". As this magazine so intelligently observes in the related article by Stanley Roberts, "State Gaming Portals," "Those who do not learn from the mistakes of history are condemned to repeat them," quoting George Santayana.

These morally conservative congressional representatives are likely to be violating our civil rights and denying us equal protection of the law; in essence, taking our rights from us in violation of the 5th and 14th Amendments to the United States Constitution. The lessons of history have shown us... what comes around goes around. Therefore, on behalf of the citizens' of the United States, I have prepared the lawsuit shown here. (Requires Adobe Acrobat to read.)

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