 iMEGA
Files Appeal Against
US Government in US
Online Gambling Law
Challenge
iMEGA.org, an
independent online
trade organization
seeking to ensure
freedom over the
Internet, announced
on Tuesday it had
filed a
Notice of Appeal in
the 3rd Circuit
Court of Appeals
(Philadelphia)
regarding its
challenge against
"policy enforcement"
of the UIGEA.
Earlier this month,
a Circuit Court
judge ruled that
iMEGA did have
"legal standing" to
pursue the matter
further.
At the time, iMEGA
offered this "open
letter to the online
gambling industry":
On March 6, 2008,
the United States
District Court for
the District of New
Jersey handed down
its opinion in the
lawsuit brought by
our Association –
iMEGA v. Gonzales,
et al. The ruling by
the Honorable Mary
L. Cooper contains a
great deal of good
and yet some bad
aspects for iMEGA –
and for the rights,
the people and the
medium we are
defending.
First and foremost,
the Court
established, with
crystal clarity, the
standing (and
associational
standing) of iMEGA
to challenge this
law in court. This
is no small thing.
Judge Cooper herself
spent 15 pages of
her 29-page decision
establishing iMEGA’s
standing, in the
process knocking
down the US
government’s primary
challenge to our
suit. iMEGA flat-out
beat the government
on that point.
Many legal
commentators—both
supporters and
naysayers—from the
beginning viewed the
question of iMEGA’s
standing as an
insurmountable
barrier to moving
forward. Well, we’ve
crossed over that
barrier, and now the
government has to
contend with iMEGA
as fully and
unquestionably
empowered by the
Court to assert our
rights in the courts
of the United
States. The fact
that the Federal
courts have now
recognized iMEGA as
the champion of
Internet Gambling
industry cannot be
overstated.
However, at the same
time, Judge Cooper
essentially failed
to rule on the
groundbreaking
questions we
presented, namely,
that those
fundamental rights
we all enjoy – of
privacy, speech,
expression, and
conduct – should not
be lessened in any
way when we are
using the Internet.
With her dismissal,
Judge Cooper simply
affirmed that
Congress had the
right to pass the
law in a
constitutional
manner - a point
iMEGA never
challenged. As a
result, the Court is
in essence standing
aside and reserving
these issues to be
decided by a “higher
authority,” the
United States Court
of Appeals for the
Third Circuit and,
potentially, the
United States
Supreme Court.
However, Judge
Cooper’s opinion not
only acknowledged
the failings of the
Unlawful Internet
Gambling Enforcement
Act (UIGEA) but, in
Footnote 12 on Page
27 of her decision,
stated categorically
that the “criminal
penalties” provided
for under the UIGEA
do not apply to
“financial
businesses,” such as
“financial
transaction
providers” (i.e.
banks, credit card
companies an payment
processors)—which
are subject only to
“regulatory
enforcement.”
Given that UIGEA’s
authors and
supporters made it
perfectly clear from
the start that their
driving purpose was
to “starve” internet
gambling by
criminally punishing
the financial
institutions that
provide services to
it, the Court’s
decision will have a
monumental impact
across the board, in
the courts and in
various legislative
branches.
The next step for
iMEGA is to take
this battle to the
Third Circuit Court
of Appeals in
Philadelphia, an
appellate court that
has been
traditionally
protective of the
fundamental rights
of speech and
expression. One need
only look to that
Court’s striking
down (multiple
times) of the Child
Online Protection
Act (COPA) – another
well intentioned but
over-reaching
Federal law – for an
example of how
favorable that Court
can be to iMEGA’s
challenge.
A positive result
for iMEGA in the
Third Circuit,
affirming our
“digital civil
rights”, would
represent a truly
landmark victory
with historic
consequences.
In light of
political pressures,
we expect the
Justice Department
to bring all of its
vast resources to
this fight. Indeed,
it may be the
government that
first files an
appeal with the
Third Circuit, to
overturn the
standing granted to
iMEGA and to put
UIGEA’s criminal
penalties for
financial
institutions back in
place.
There are other
fights iMEGA has
been a part of, most
notably its
opposition to the
proposed UIGEA
regulations. With
the possible
exception of the
American Banking
Association, no one
has more precisely
and effectively
portrayed how faulty
the proposed UIGEA
regulations are, in
the hope of
preventing them from
being promulgated or
weakened to such an
extent that they
become meaningless.
While we were
disappointed that
Judge Cooper
dismissed our
lawsuit, this case
is far from over. We
always knew that
this would be the
first round in a
serious fight, as
most important legal
battles are. Many
legal challenges
that lost their
first round make up
many of the rights
Americans now take
for granted:
Brown v. Board of
Education (”Separate
but Equal” school
systems) -
Originally lost in
U.S. District Court
for the District of
Kansas
Miranda v. Arizona
(Illegal
Interrogations) -
Originally lost in
the Arizona Supreme
Court
Gideon v. Wainwright
(Right to Counsel) -
Originally lost in
the Florida Supreme
Court and Fourteenth
Judicial Circuit of
Florida
Tinker v. Des Moines
(Freedom of Speech)
- Originally lost in
U.S. District Court
and the Eighth
Circuit Court of
Appeals
We can’t imagine how
our rights would
have been preserved
had those challenges
quit in the first
round. At issue here
are fundamental
questions that,
ultimately, have to
be decided by the
higher courts, and
iMEGA has been
recognized by the
Court as the
champion to fight
this battle.
We value your
support as we move
forward.
----
Gambling911.com News
Wire
Originally published
April 1, 2008 1:50
pm EST
|
