Talk of a Department of Justice response to Congress about the Kyl bill has been floating around recently. Well, this Justice Department analysis of the Kyl bill is now seeing the light of day and it makes for a very interesting read. We've got the whole letter for your perusal but if you're looking for a synopsis to whet your appetite, here it is.
It is highly critical of S. 474 and says:
- Because of its overbreadth, S. 474 could "criminalize the dissemination of information relating to lawful gambling at land-based casinos."
- The language of S. 474 creates different standards as to what constitutes a "bet or wager" and that the inconsistencies create significant prosecutorial problems.
- It would criminalize casual bettors -- a significant expansion over current federal gambling law and could apply to NCAA basketball pools conducted over e-mail, and thus raise issues of inconsistent enforcement.
- The bill fails to properly define what constitutes a "gambling business."
- The definition of what constitutes "bets or wagers" is overbroad, but could also fail to cover casino style gaming (since the language would amend 18 USC sec. 1084 that is limited to sports wagering).
- Section 5 of the bill urges the Administration to commence negotiations with foreign governments to figure out to enforce this overseas. DoJ says that they are already in multilateral negotiations on organized crime, and that "redirecting our efforts, even in part, to focus on internet gaming would be a mistake."
- Trying to get other countries to enforce our laws opens the U.S. up to charges of inconsistent application of law -- and possibly the inappropriate application of foreign laws to U.S. persons. DoJ notes, for example, that other countries with "hate speech" laws might try to hold accountable (and even extradite) U.S. citizens who exercise their First Amendment freedoms on the web.
- The definition of "information assisting in the placement of bets or wagers" is so vague as to possibly include non-gaming transactions (like fantasy sports) or advertising. As such, S. 474 raises constitutional concerns.
- The various exceptions for pari-mutuel wagering "would expand the scope of permissible pari-mutuel activities beyond what is currently permitted under existing law. In light of the study underway by the National Gambling impact Study Commission, we question whether EXPANDING OPPORTUNITIES FOR INTERACTIVE GAMING IS APPROPRIATE AT THIS TIME." (Emphasis added.)
- The civil enforcement remedies, which would require judges to enjoin ISPs from allowing access to gaming sites inappropriately infringes upon judicial discretion.
- Requiring ISPs to respond beyond merely shutting down sites wholesale may not be technologically feasible.
- Identifying gambling related transmissions would be nearly impossible for ISPs. Requiring ISPs to filter all e-mail traffic to identify offending transmissions, "may have serious economic and societal consequences for internet usage generally."
- Requiring DoJ to report on internet gambling activity would be duplicative, since the National Gambling Impact Study Commission is already doing just that.
- "We believe . . . that there is considerable value in waiting until the National Gambling Impact Study Commission has concluded its study on the scope of internet gambling BEFORE passing new legislation that would change the way in which Internet gambling is regulated or prohibited." (Emphasis added.)
Kyl has likely been trying to keep a lid on this report, only disclosing bits and pieces as necessary. Obviously, now, we know why.
You can find the whole story here.