Net Gambling Update

25 June 1998

The Internet gambling debate is heating up again. Although my information is conflicting, it appears that the Kyl bill, which would make Internet gambling illegal, may come up for a vote before the full Senate soon. The exact wording of the bill is a moving target, but its basic concepts seem clear. Now, we just need to ask, "Is this good policy for the Internet?"

Under current law, a bettor doesn't violate federal law by placing a bet by telephone. Under the Kyl bill, the bettor commits a federal crime if she places her bet using the Internet while placing a bet by telephone remains legal. I think that the dichotomy between how the law treats a person who places a bet by telephone or by use of the Internet is simple to explain: it's pure nonsense. I can't imagine any reasonable distinction being made between how we regulate telephones versus the Internet.

It was back in the early 1960s that the federal government passed legislation regulating telephone gambling. The concern was largely due to organized crime's involvement in gambling. So, Congress made it illegal to run a gambling business but made no attempt to regulate individual betting activities. During hearings on the law proposed about 37 years ago, then-United States Attorney General Robert Kennedy acknowledged that the federal government had no intention of prosecuting individual bettors. Thirty-seven years ago, they understood the folly of trying to enforce a telephone betting ban on individuals.

Today, we seem to have lost this bit of wisdom. I suppose Senator Kyl would like to see the Internet police intercepting data streams to search for illegal betting activity. I guess we could subpoena bank account records looking for checks to casinos. We could even encourage children to turn in their parents before they squander the mortgage payment.

International in Scope

One thing that Senator Kyl clearly does understand is that online gambling is an issue that's international in scope. One section of his bill states that it's "the sense of Congress" that the United States negotiate with other countries regarding enforcement of our online gambling ban outside of the United States.

I wonder if Senator Kyl has truly thought this one through to its logical conclusion. He wants other countries to help us enforce our Internet-only (telephone is OK) ban on gambling. He wants them to help us even if the activity is licensed and regulated in their own country.

Would this work in reverse? I wonder if Senator Kyl is prepared to reciprocate this cooperation when it comes to "crimes" that aren't "crimes" here. What if another nation requests our cooperation in prosecuting their dissidents when they come to the United States to publish their dissenting views? Clearly, since we value the right to free speech, we would reject such a request. Similarly, if another nation chooses to license and regulate online gambling, we can't really expect them to help us.

The Internet, computer networks and an increasingly-global economy create many challenges for law enforcement in the information age. International cooperation is the only way we can effectively prevent the Internet from becoming a lawless underworld, but we must not allow ourselves to get lost in endless debates over what should be illegal. To do so is to waste time and effort when it's important to act against crimes fundamental to a civilized world like child pornography and theft.

Asking for cooperation in investigating online gambling activity is different than asking for cooperation in an international computer hacking investigation or seeking collaboration in controlling child pornography. Criminalizing gambling is simply not a fundamental value; it is not universally prohibited, not even in the United States.

We must recognize that different nations have disparate values. Gambling is a vice crime where even this country demonstrates a certain schizophrenia. Gambling is generally illegal in the United States. Right? I think that's wrong. Almost every state has some form of legal gambling. A few have casino gambling and sports betting. Still more have state lotteries, horse racing and bingo.

The only thing clear about gambling regulation is that we're not dealing with a fundamental value as when we are talking about our disgust for child pornography. No matter what your view on gambling, you have to acknowledge that Americans have different opinions on the subject.

Requests for international cooperation should be limited to where fundamental values are implicated. Otherwise, we fall into irreconcilable debates with other nations with differing values.

In cyberspace, where you can cross geo-political boundaries without knowing it, we have to accept that the world, and how we regulate it, changes a bit. We've long accepted that, when we physically leave the United States, we generally leave our laws behind. We have come to accept that, when we're in another sovereign nation, its laws govern us. We need to start getting used to the idea that cyber travel may subject us to the laws of a different nation. The United States can't reasonably expect its laws to govern the entire world of cyberspace just because an American is involved.

Mark Grossman's "TechLaw" column appears in numerous publications. Mark Grossman has extensive experience as a speaker as well. If you would like him to speak before your group or corporate meeting, please call (305) 443-8180 for information.

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