A new Department of Justice, Office of Legal Counsel opinion, written at the end of 2018 and published this week, states that the 1961 Wire Act applies to all forms of gambling that crosses state lines. This includes online lottery, online casino gaming and online poker, and reverses a 2011 opinion that the Wire Act only applies to sports betting.
The 2018 opinion states: “The Criminal Division has asked us to reconsider the 2011 Opinion’s conclusion that the Wire Act is limited to sports gambling…. We do not lightly depart from our precedents, and we have given the views expressed in our prior opinion careful and respectful consideration. Based upon the plain language of the statute however, we reach a different result. While the Wire Act is not a model of artful drafting, we conclude that the words of the statute are sufficiently clear and that all but one of its prohibitions sweep beyond sports gambling. We further conclude that the 2006 enactment of UIGEA did not alter the scope of the Wire Act.”
Analysts are scrambling to decipher this new opinion. The general feeling is that it won’t alter the scope of online gambling in the United States and that legal intrastate online gambling and online poker sites are not threatened for now. But there is now a cloud of uncertainty hanging over the US gambling industry, and some admit that the DOJ opinion may affect areas where it didn’t even intent to hit, including intrastate online casino and online poker, daily fantasy sports, online lottery sales and more.
The Department of Justice admits that it foresees legal battles if it decides to enforce the opinion, especially since its opinion is in direct conflict with some federal courts. Nor will online gambling operators or state officials take the reversal of the opinion lying down, especially since many states based their introduction of online lottery sales on the 2011 opinion in the first place.
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