US Government Has No Strong Point in Online Gambling Case

Written by:
Jenny Woo
Published on:
Jun/16/2009's Jenny Woo continued her sit down interview with founder, Joe Brennan, Jr. where the discussion centered around his organization's chances of having the Unlawful Internet Gaming Enforcement Act ruled "Unconstitutional". 

JENNY:  In your opinion do you think there are those out there who believe a decision against iMEGA in the Appeals process will ultimately hurt Barney's chances?

JOE:  No.  I often get that - "Well, you guys may make bad law." Or, "You might get a bad decision that makes things worse."  All I want to ask those people is, "How are things going to get worse right now?"  You have UIGEA in place; you have the Wire Act in place; you have a Justice Department that doesn't even need specific exemptions in trying to settle a law that is essentially doing as they please here in the country.  You have a huge mountain to climb in Congress.  I don't see how a group challenging the constitutionality of the law - other than it getting dismissed from court.  How does that have a negative impact on what anybody else is doing?  We've been dealt the losing hand here.  If we somehow turned it into a win, then it's something.  If we lose, everybody expects us to lose anyway.


JENNY:  You're dealing in an industry that posts odds, if you were an oddsmaker, what would the odds be that the judge would find in your favor?

JOE:  Honestly, I may be in an industry that deals in odds but I am no handicapper.  (Haha) Maybe if I were, I wouldn't be doing this.  I would be Billy Walters or something like that.  All I can tell you is this - I look at a guy like Stephen Saltzburg - here's a guy that's a law professor at George Washington University School of Law; one of the best law professors in the country and that's not just marketing - that's the truth.  This guy is a former deputy attorney general in the United States.  He has been before the 3rd Circuit Court of Appeals on more occasions than you can count.  This guy signed on to this and he believes that this is a winner.  I'm not lawyer; I'm no constitutional attorney but I put my faith in a guy like Steve Saltzburg and I put my faith in a guy like Eric Bernstein who's fought these kind of amendment battles for a long time.  If those guys tell me that we've got an excellent shot at winning this thing - I believe them.  It's not because I want to believe them but because of who they are.  

JENNY:  Not to be a pessimist, but what do you see as the strongest point in the US Government's argument in regard to keeping the UIGEA policy enforcement as is? 

JOE:  Honestly, I don't see a strong point.  To me - and this is why we wanted to go to the courts because this is not about politics and this is not about emotions or issues or anything like that.  This is strictly about the law.  I think it's very difficult for the government to counter the argument of "void for vagueness".  We say that the law is impossibly vague and there's no definition of what "Unlawful Internet Gambling" is.  But you don't need to take iMEGA's word for it and maybe you don't need to take the word of the American Banking Association in which testified before Congress to that effect - that it's impossible for them to do this without that being clarified by Congress.  Congress declined to do it. 

If you want to look to anyone perhaps for the greatest creditability on that - look to the testimony of the Department of Treasury.  The very people who crafted the regulations to go along with UIGEA where they said (I'm paraphrasing), "That it is extremely difficult for companies to comply with the law without a clear definition of what "Unlawful Internet Gambling" is."  Congress declined to do it. 

Some may say that they did it on purpose hoping for this over blocking affect; and if they defined it from how people were trying to find a way to circumvent it - but if they don't define it - then people aren't one hundred percent sure what's legal and what's not legal so the desired affect will be like, "Well then they just won't do business with anybody."  And now, that's actually been worn out.  Look at the lotteries; look at what happened in the New Hampshire and North Dakota lotteries.  Exactly what we said would happen - did happen.  Specific exemption UIGEA was granted to the state lotteries but as soon as the law was to enter effect in January, New Hampshire and North Dakota had online purchases of their lottery tickets blocked.  And they had met with the National Association of State Lotteries - had met with the Justice Department well in advance of this to express their concern that this very thing would happen.  The Justice Department assured them that it wouldn't and yet it did.  Now there's one thing that you may take away from this to say, "Well, maybe iMEGA has got something here." 

When the news came out about New Hampshire and North Dakota, we moved to have the records supplemented in the 3rd Circuit Court of Appeals to include that information and that the court to consider it.  Now, that's taking this effect of law - the negative impact that this law may have off the page and demonstrating it in the real world.  It's no longer just a legal concept; it's reality.  The Justice Department opposed the inclusion.  That's the only time during the coarse of this entire campaign that the Justice Department has opposed providing anything to the court on an informational basis.  And they said the reason why that they objected was that this was not a special circumstance that met the rules and that the information was not provided at trial.  Well of course the information wasn't provided at trial because the trial was two years prior to this.  If this is not a special circumstance then I don't know what is.  It's ridiculous to say, "Looking at evidence of the real world impact of the law is not necessary."  When they opposed that, I'll tell you that that really increased my faith in our argument.  

Jenny Woo, Senior International Correspondent        

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