Aces and Eights: Why the Unlawful Internet Gambling Enforcement Act Resides in "Dead Man's" Land in Attempting to Further Curb Online Gambling and Why Expanded Criminalization Is Preferable to Legalization
Conon, Jonathan, Journal of Criminal Law and Criminology
IS the ability of the citizenry to gamble legally on the Internet a fight that must be protected? Since the enactment of the Unlawful Internet Gambling Enforcement Act (1) in October of 2006, the answer is no. But Representative Barney Frank, along with at least fifty House cosponsors, hopes to change this reality through the passage of H.R. 2267, the Internet Gambling Regulation, Consumer Protection, and Enforcement Act. (2) This Comment attempts to distill the arguments both for and against using the criminal law to control Internet gambling and ultimately concludes that a stronger law, which reaches both operators and individual gamblers, is necessary to address the serious concerns associated with the activity.
II. THE CURRENT STATE OF THE LAW: UNLAWFUL INTERNET GAMBLING ENFORCEMENT ACT OF 2006
The Unlawful Internet Gambling Enforcement Act of 2006 (UIGEA) was passed into law in an attempt to combat online gaming. (3) The drafters of the UIGEA cited a growing concern that debts stemming from Internet gambling would be uncollectable as a main reason for the Act's passage. (4) In addition to the issues surrounding uncollectible debts, concerns over fraud, money laundering, and pathological and underage gaming were also advanced as valid reasons for the law. (5) The alleged inadequacy of current taw enforcement mechanisms to prohibit an activity that, by its nature, crosses both national and state borders was also proffered as justification for the UIGEA's passage. (6)
Despite the efforts of the drafters to address these evils, the UIGEA fails to fully accomplish its objectives because of a lack of serious enforcement. (7) This result is not surprising considering that key terms of the law, such as "unlawful internet gambling," are not clearly defined. (8) Additionally, the UIGEA includes numerous explicit exemptions that suggest a comprehensive online gambling ban was not intended. (9) Lastly, the absence of a prohibition on individual gamblers leaves the supply of online players virtually unaffected. (10) These problems are briefly considered below.
The UIGEA functions by prohibiting monetary transfers from individuals involved in Internet gambling. (11) However, the law does not subject the individual bettor to criminal penalties, (12) nor does it explicitly prohibit all forms of Internet gambling. (13) Thus, one substantive problem with the UIGEA is that a vague definition of "unlawful internet gambling" has caused some to believe that particular areas of online gambling are still legal. (14) The Act defines unlawful Internet gambling as "plac[ing], receiv[ing], or otherwise knowingly transmit[ting] a bet or wager by any means which involves the use, at least in part, of the Internet where such bet or wager is unlawful under any applicable federal or state law...." (15) Instead of defining what constitutes illegal gambling, the UIGEA relies on pre-existing state and Federal law, which it previously describes as inadequate to handle the problem, (16) as the source of a vital component of the legislation. (17) For this reason, proponents of online gambling, particularly poker, continue to advance the position that some forms of Internet gambling are still legal. (18)
A second substantive problem with the UIGEA is the number of explicit exemptions it grants, (19) which again reinforces the notion that some forms of Internet gambling are legal. In particular, [section] 5362(1)(E)(ix) excludes participation in a fantasy sports game or contest from the definition of "bet" or "wager" so as to place these activities outside the UIGEA's reach. (20) Fantasy sports proponents believe their games rest on the skill of the competitors, rather than on pure luck or chance, and thus are deserving of an explicit exemption. (21) The problem with this exemption and others like it arises when advocates for borderline games like poker contend that they, too, are deserving of a skill-based exemption. …