1 (f) APPLICABILITY (1) IN GENERAL. Subject to paragraph (2), the prohibition in this section does not apply -- (A) any otherwise lawful bet or wager that, is placed, received, or otherwise made wholly intrastate for a State lottery, operated jointly between 2 or more States in conjunction with State lotteries if--(i) each such lottery is expressly authorized, and licensed or regulated, under applicable State law;(ii) the bet or wager is placed on an interactive computer service that uses a private network; (iii) each person placing or otherwise making that bet or wager is physically located when such bet or wager is placed at a facility that is open to the general public; and (iv) each such lottery complies with [18 U.S.C.] sections 1301 through 1304 [relating to lotteries], and other applicable provisions of Federal law;
"(B) any otherwise lawful bet or wager that is placed, received, or otherwise made on an interstate or intrastate basis on a live horse or a live dog race, or the sending, receiving, or inviting of information assisting in the placing of such a bet, or wager, if such bet or wager, or the transmission of such information, as applicable, is--(i) expressly authorized. and licensed or regulated by the State in which such bet or wager is received, under applicable Federal and :such State's laws; (ii) placed on a closed-loop subscriber-based service; (iii) initiated from a State in which betting or wagering on that game type of live horse or live dog racing is lawful and received in a State in which such betting or wagering is lawful; (iv) subject to the regulatory oversight of the State in which the bet or wager is received and subject by such State to minimum control standards for the accounting, regulatory inspection, and auditing of all such bets or wagers transmitted from 1 State to another; and (v) in the case of-- (I) live horse racing, made in accordance with the Interstate Horse Racing Act of 1978 (15 U.S.C. 3001 et seq.); or (II) live dog racing, subject, to consent agreements that are comparable to those required by the Interstate Horse Racing Act of 1978, approved by the appropriate State regulatory agencies, in the State receiving the signal, and in the State, in which the bet or wager originates; or
"(C) any otherwise lawful bet or wager that is placed, received, or otherwise made for a fantasy sports league game or contest.
"(2) BETS OR WAGERS MADE BY AGENTS OR PROXIES. (A) IN GENERAL-Paragraph (1) does not apply in any case in which a bet or wager is placed, received, or otherwise made by the use of an agent or proxy using the Internet or an interactive computer service.
"(B) QUALIFICATION- Nothing in this paragraph may be construed to prohibit the owner operator of a parimutuel wagering facility that is licensed by a State from employing an agent in the operation of the account wagering system owned or operated by the parimutuel facility.
"(3) ADVERTISLNG AND PROMOTION- The prohibition of subsection (b)(1)(B) does not apply to advertising or promotion of any activity that is not prohibited by subsection (b)(1)(A)," proposed 18 U.S.C. 1085(f).
2 "The term 'Person' means any individual, association, partnership, joint venture, corporation (or any affiliate of a corporation), State or political subdivision thereof, department, agency, or instrumentality of a State or political subdivision thereof, or any other government, organization, or entity (including any governmental entity (as defined in section 3701(2) of title 28)*)," proposed 18 U.S.C. 1085(a)(9).
*[T]he term "governmental entity" means a State, a political subdivision of a State, or an entity or organization, including an entity or organization described in section 4(5) of the Indian Gaming Regulatory Act (25 U.S.C. 2703(5)), that has governmental authority within the territorial boundaries of the United States, including on lands described in section 4(4) of such Act (25 U.S.C. 2703(4))," 28 U.S.C. 3701(2).
3The term 'gambling business' means-- (A) a business that is conducted at a gambling establishment, or that: (i) involves-- (I) the placing, receiving, or otherwise making of bets or wagers; or (II) the offering to engage in the placing, receiving, or otherwise making of bets or wagers; (ii) involves 1 or more persons who conduct, finance, manage, supervise, direct, or own all or part of' such business; and (iii) has been or remains in substantially continuous operation for a period in excess of 10 days or has a gross revenue of $2,000 or more from such business during any 24-hour period, and
"(B) any soliciting agent of a business described in subparagraph (A)," proposed 18 LI.S.C. 1085(a)(4).
4The term 'Internet' means the international computer network of both Federal and non-Federal interoperable packet switched data networks," proposed 18 U.S.C. 1085(a)(8).
5The term 'interactive computer service' means any information service, system, or access software provider that operates in, or uses a channel or instrumentality of, interstate or foreign commerce to provide or enable access by multiple users to a computer server, including specifically a service or system that provides access to the Internet," proposed 18 U.S.C. 1085(a)(6).
6The term 'bets or wagers'-- (A) means the staking or risking by any person of something of value upon the outcome of a contest of others, a sporting event, or a game of chance, upon an agreement or understanding that the person or another person will receive something of value based on that outcome;
"(B) includes the purchase of a chance or opportunity to win a lottery or other prize (which opportunity to win is predominantly subject to chance);
"(C) includes any scheme of a type described in section 3702 of title 28; and
"(D) does not include-- (i) a bona fide business transaction governed by the securities laws (as that term is defined in section 3(a)(47) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(47))) for the purchase or sale at a future date insecurities (as that term is defined in section 3(a)(10) of the Securities Exchange Act of 1934 (15 U.S.C. 78c(a)(10))); (ii) a transaction on or subject to the rules of a contract market designated pursuant to section 5 of the Commodity Exchange Act (7 U.S.C. 7); (iii) a contract of indemnity or guarantee, or (iv) a contract for life., health, or accident insurance," proposed 18 IJ.S.C. 1085(a)(1).
7(f) APPLICABILITY (1) IN GENERAL. Subject to paragraph (2), the prohibition in this section does not apply to-- (A) any otherwise lawful bet or wager that is placed, received, or otherwise made wholly intrastate for a State lottery, or for a multi-State lottery operated jointly between 2 or more States in conjunction with State lotteries if--(i) each such lottery is expressly authorized, and licensed or regulated, under applicable State law;(ii) the bet or wager is placed on an interactive computer service that uses a private network; (iii) each person placing or otherwise making that bet or wager is physically located when such bet or wager is placed at a facility that is open to the general public; and (iv) each such lottery complies with sections 1301 through 1304, and other applicable provisions of Federal law;
"(B) any otherwise lawful bet or wager that is placed, received, or otherwise made on an interstate or intrastate basis on a live horse,, or a live dog race, or the sending, receiving, or inviting of information assisting in the placing of such a bet or wager, if such bet or wager, or the transmission of such information, as applicable, is- (i) expressly authorized, arid licensed or regulated by the State in which such bet or wager is received, under applicable Federal and such State's laws; (ii) placed on a closed-loop subscriber-based service; (iii) initiated from a State in which betting or wagering on that same type of live horse or live dog racing is lawful and received in a State in which such betting or wagering is lawful; (iv) subject to the regulatory oversight of the State in which the bet or wager is received and subject by such State to minimum control standards for the accounting, regulatory inspection, and auditing of all such bets or wagers transmitted from 1 State to another; and (v) in the case of-- (I) live horse racing, made in accordance with the Interstate Horse Racing Act of 1978 (15 U.S.C. 3001 et seq.); or (II) live dog racing, subject to consent agreements that are comparable to those required by the Interstate Horse Racing Act of 1978, approved by the appropriate State regulatory agencies, in the State receiving the signal, and in the State in which the bet or wager originated, or
"(C) any otherwise lawful bet or wager that is placed, received, or otherwise made for a fantasy sports league game or contest.
"(2) BETS OR WAGERS MADE BY AGENTS OR PROXIES. (A) IN GENERAL- Paragraph (1) does not apply in any case in which a bet or wager is placed, received, or otherwise made by the use of an agent or proxy using the Internet or an interactive computer service.
"(B) QUALIFICATION- Nothing in this paragraph may be construed to prohibit the owner operator of a parimutuel wagering facility that is licensed by a State from employing an agent in the operation of the account wagering system owned or operated by the parimutuel facility.
"(3) ADVERTISING AND PROMOTION- The prohibition of subsection (b)(1)(B) does not apply to advertising or promotion of any activity that is not prohibited by subsection (b)(1)(A)," proposed 18 U.S.C. 1085(f).
8"The term 'person' means any individual, association, partnership, joint venture, corporation (or any affiliate of a corporation), State or political subdivision thereof, department, agency, or instrumentality of a State or political subdivision thereof, or any other government, organization, or entity (including any governmental entity (as defined in section 3701(2) of title 28)*)," proposed 18 U.S.C. 1085(a)(9).
* "[T]he term "governmental entity" means a State, a political subdivision of a State, or an entity or organization, including an entity or organization described in section 4(5) of the Indian Gaming Regulatory Act (25 U.S.C. 2703(5)), that has governmental authority within the territorial boundaries of the United States, including on lands described in section 4(4) of such Act (25 U.S.C. 2703(4))," 28 U.S.C. 3701(2).
9"The term 'gambling business means-- (A) a business that is conducted at a gambling establishment, or that: (i) involves--(I) the placing, receiving, or otherwise making of bets or wagers; or (II) the offering to engage in the placing, receiving, or otherwise making of bets or wagers; (ii) Involves 1 or more persons who conduct, finance, manage, supervise, direct, or own all or part of such business; and (iii) has been or remains in substantially colors operation for a period in excess of 10 days or has a gross revenue of $2,000 or more from such business during any 24-hour period; and
"any soliciting agent of a business described in subparagraph (A), proposed 18 U.S.C. 1085(a)(4).
10"The term 'Internet' means the international computer network of both Federal and non-Federal interoperable packet switched data networks," proposed
11"The term 'Interactive computer service' means any information Service, system, or access software provider that operates in, or uses a channel or instrumentality of, interstate or foreign commerce to provide or enable access by multiple users to a computer server, including specifically a service or system that provides access to the Internet," proposed 18 U.S.C. 1085(a)(6).
12"The term 'information assisting in the placing of a bet or wager'-- (A) means information that is intended by the sender or recipient to be used by a person engaged in the business of betting or wagering to place, receive, or otherwise make a bet or wager; and
"(B) does not include-- (i) information concerning parimutuel pools that is exchanged exclusively between or among 1 or more racetracks or other parimutuel wagering facilities licensed by the State or approved by the foreign jurisdiction in which the facility is located, and 1 or more parirnutuel wagering facilities licensed by the State or approved by the foreign jurisdiction in which the facility is located, if that information is used only to conduit common pool parimutuel pooling under applicable law; (ii) information exchanged exclusively between or among 1 or more racetracks or other parimutuel wagering facilities licensed by the State or approved by the foreign jurisdiction in which the facility is located, and a support service located in another State or foreign jurisdiction, if the information is used only for processing bets or wagers made with that facility under applicable law; iii) information exchanged exclusively between or among 1 or more wagering facilities that are located within a single State and are licensed and regulated by that State, and any support service, wherever located, if the information is used only for the pooling or processing of bets or wagers made by or with the facility or facilities under applicable State law; (iv) any news reporting or analysis of wagering activity, including odds, racing or event results, race and event schedules, or categories of wagering; or (v) any posting or reporting of any educational information on how to make a bet or wager or the nature of betting or wagering," proposed 18 U.S.C. 1085(a)(5),
13 "(a) Whoever commits an offense against the United States or aids, abets, counsels, commands, induces or procures its commission, is punishable as a principal. (b) Whoever willfully causes an act to be done which if directly performed by him or another would be an offense against the United States, is punishable as a principal," 18 U.S.C. 2.
14"The District Court instructed the jury that mere bettors in a lottery violated Florida law, and that if the bettors traveled interstate for the purpose of gambling, they also violated the Travel Act. Presumably referring to petitioners [who ran the gambling establishment], the District Court further charged that a defendant could be found guilty under the aiding and abetting statute, 18 U.S.C. 2, without proof that he personally performed every act constituting the charged offense. On appeal, the Fifth Circuit held that ยง1952 did not make it a federal crime merely to cross a state line for the purpose of placing a bet and reversed the convictions of the two Georgia residents because the evidence presented at trial was insufficient to show that they were anything other than customers of the gambling operation.... We agree with the Court of Appeals that it cannot be said, with certainty sufficient to justify a criminal conviction, that Congress intended that interstate travel by mere customers of a gambling establishment should violate the Travel Act," 408 U.S. at 810-11.
15See e.g., S. 474 (105tti Cong.)(as introduced)("It is the sense of the Senate that the Federal Government should have extraterritorial jurisdiction over the transmission to or receipt from the United States - (1) of bets or wagers ... [and] information assisting in placing bets or wagers. . . ."); S. 474(105th Cong.)(as reported out of Committee)("the Secretary of State. . . shall commence negotiations with foreign countries in order to conclude international agreement that would enable the United States to enforce section 1085(c)(1) . . . as added by this Act, with respect to persons ... who are engaged in violations of that section from outside the United States").
16"The involvement of organized crime in Internet gambling is particularly alarming. According to an analysis prepared by the racketeering Records Analysis Unit of the FBI and provided to the Subcommittee in May 1999, organized crime groups are 'heavily involved' in offshore gambling, and the majority of Internet gambling operations are located offshore - in the Caribbean and Central and South America.
. . . Gambling businesses around the country have turned to the Internet in a clear (and illegitimate) attempt to circumvent the existing prohibitions on gambling contained in the Wire Act . . . . Many gambling organizations now provide betting opportunities over the Internet from offshore locations to avoid and complicate effective Federal and State law enforcement," S.Rep-No. 106-121, at 16.
17(B) ELIGIBILITY- An interactive computer service provider is described in this subparagraph only if the provider- (i) maintains and implements a written or electronic policy that requires the provider to terminate the account of a subscriber of its system or network expeditiously following the receipt by the provider of a notice described air paragraph (2)(B) alleging that such subscriber has violated or is violating this section; and
(ii) with respect to the particular material or activity at issue, has not knowingly permitted its computer server to be used to engage in activity that the provider knows is prohibited by this section, with the specific intent that such server be used for such purpose," proposed 18 U.S.C. 1085(d)(1)(B). But, "[n]othing in this section may be construed to impose or authorize an obligation on an interactive computer service provider described in paragraph (1)(B)- (i) to monitor material or use of its service, or
(ii)except as required by a notice or an order of a court under this subsection, to gain access to, to remove, or to disable access to material," proposed 18 U.S.C. 1085(d)(4)(B).
"
18"(1) IMMUNITY FROM LIABILITY FOR USE BY ANOTHER- (A) IN GENERAL- An interactive computer service provider described in subparagraph (B) shall not be liable, under this section or any other provision of federal or State law prohibiting or regulating gambling or gambling-related activities, for the use of its facilities or services by another person to engage in Internet gambling activity that violates such law- (i) arising out of any transmitting, routing, or providing of connections for gambling-related material or activity (including intermediate and temporary storage in the course of such transmitting, routing, or providing connections) by the provider, if-
(I) the material or activity was initiated by or at the direction of a person other than the provider;
(II) the transmitting, routing, or providing of connections is carried out through an automatic process without selection of the material or activity by the provider;
(III) the provider does not select the recipients of the material or activity, except as an automatic response to the request of another person; and
(IV) the material or activity is transmitted through the system or network of the provider without modification of its content; or
(ii) arising out of any gambling-related material or activity at an online site residing on a computer server owned, controlled, or operated by or for the provider, or arising out of referring or linking users to an online location containing such material or activity, if the material or activity was initiated by or at the direction of a person other than the provider, unless the provider fails to take expeditiously, with respect to the particular material or activity at issue, the actions described in paragraph (2)(A) following the receipt by the provider of a notice described in paragraph (2)(B)," proposed 18 U.S.C. 1085(d)(1).
19"(2) NOTICE TO INTERACTIVE COMPUTER SERVICE PPOVIDERS-(A) IN GENERAL- If an interactive computer service provider receives from a Federal or State law enforcement agency, acting within its authority and jurisdiction, a written or electronic notice described in subparagraph (B), that a particular online site residing on a computer server owned, controlled, or operated by or for the provider is being used by another person to violate this section, the provider shall expeditiously- (i) remove or disable access to the material or activity residing at that online site that allegedly violates this section; or
(ii) in any case in which the provider does not control the site at which the subject material or activity resides, the provider, through any agent of' the provider designated in accordance with section 512(c)(2) of title 17, or other responsible identified employee or contractor-
(I) notify the Federal or State law enforcement agency that the provider is not the proper recipient of such notice; and
(II)upon receipt of a subpoena, cooperate with the Federal or State law enforcement agency in identifying the person or persons who control the site,
(B) NOTICE- A notice is described in this subparagraph only if it-- (i) identifies the material or activity that allegedly violates this section, and alleges that such material or activity violates this section;
(ii) provides information reasonably sufficient to permit the provider to locate (and, as appropriate, in a notice issued pursuant to paragraph (3)(A) to block access to) the material or activity;
(iii) is supplied to any agent of a provider designated in accordance with section 512(c)(2) of title 17, if information regarding such designation is readily available to the public-;
(iv) provides information that is reasonably sufficient to permit the provider to contact the law enforcement agency that issued the notice, including the name of the law enforcement agency, and the name and telephone number of an individual to contact at the law enforcement agency (and, if available, the electronic mail address of that individual); and
(v) declares under penalties of perjury that the person submitting the notice is an official of the law enforcement agency described in clause (iv).
20"(B) LIMITATIONS - Notwithstanding any other provision of this section, in the case of any application for a temporary restraining order or an injunction against an interactive computer service provider described in paragraph (l)(B) to prevent a violation of this section- (i) arising out of activity described in paragraph (1)(A)(i), the injunctive relief is limited to-
(I) an order restraining the provider from providing access to an identified subscriber of the system or network of the interactive computer service provider, if the court determines that there is probable cause to believe that such subscriber is using that access to violate this section (or to engage with another person in a communication that violates this section), by terminating the specified account of that subscriber; and
(II) an order restraining the provider from providing access, by taking reasonable steps specified in the order to block access, to a specific, identified, foreign location;
(ii) arising out of activity described in paragraph (1)(A)(ii), the injunctive relief is limited to-
(I) the orders described in clause (I)(I);
(II) an order restraining the provider from providing access to the material or activity that violates this section at a particular online site residing on a computer server operated or controlled by the provider; and
(III) such other injunctive remedies as the court considers necessary to prevent or restrain access to specified material or activity that is prohibited by this section at a particular online location residing on a computer server operated or controlled by the provider, that are the least burdensome to the provider among the forms of relief that are comparably effective for that purpose," proposed 18 U.S.C. 1085(d)(3)(b).
21"(C) CONSIDERATIONS-The court, in determining appropriate injunctive relief under this paragraph, shall consider- (i) whether such an injunction, either alone or in, combination with other such injunctions issued, and currently operative, against the same provider wold significantly (and, in the case of relief under subparagraph (B)(ii), taking into account, among other factors, the conduct of the provider, unreasonably) burden either the provider or the operation of the system or network of the provider;
(ii) whether implementation of such an injunction would be technically feasible and effective, and would not materially interfere with access to lawful material at other online locations;
(iii) whether other less burdensome and comparably effective means of preventing or restraining access to the illegal material or activity are available; and
(iv) the magnitude of the harm likely to be suffered by the community if the injunction is not granted.
"(D) NOTICE AND EX PARTE ORDERS- Injunctive relief under this paragraph shall not be available without notice to the service provider and an opportunity for such provider to appear before the court, except for orders ensuring the preservation of evidence or other orders having no material adverse effect on the operation of the communications network of the service provider," proposed 18 U.S.C, 1086(d)(3)(C),(D).
22 "INJUCTIVE RELIEF - (A) IN GENERAL- The United States, or a State law enforcement agency acting within its authority and jurisdiction, may, not less than 24 hours following the issuance to an interactive computer service provider of a notice described in paragraph (2)(B), in a civil action, obtain a temporary restraining order, or an injunction to prevent the use of the interactive computer service by another person in violation of this section," proposed 18 U.S.C. 1085(d)(3)(A).