DOJ: Gaming bill too broad

A Senate bill to prohibit Net gambling is subject to constitutional challenges, a Justice Department attorney says.

A bill pending in the Senate that would prohibit Net gambling is inconsistent, overly broad, and subject to constitutional and other legal challenges, an attorney for the Justice Department said.

The comments, made in a letter sent at the request of Sen. Patrick Leahy (D-Vermont), are the latest criticism of the Internet Gambling Prohibition Act, sponsored by Sen. Jon Kyl (R-Arizona). Kyl has said the bill is needed so that existing gambling laws--which prohibit the transmission of interstate bets via wire communications--can keep pace with the growing use of the Internet.

But critics have charged that the bill goes well beyond that, carving out prohibitions that would be singular to Internet gamblers. The Justice Department's letter, authored by assistant attorney general L. Anthony Sutin, agreed.

"If this legislation were to be enacted, the federal criminal law would significantly differ in the way it treats two individuals who place identical wagers with the same recipient, depending on what method of transmission the bettors use," Sutin stated. "Legislation should, absent some articulable reason, treat physical activity and cyberactivity in the same way."

Specifically, Sutin wrote, Kyl's bill would apply to any person using the Internet or other interactive devices to take or place wagers. Existing laws apply only to people "in the business of betting or wagering." As a result, people who engaged in so-called fantasy football or office pools might be guilty of federal offenses under the new law, according to Sutin.

The assistant attorney general went on to criticize other provisions in the bill that he said would create problems, including one calling on the president to encourage foreign countries to police their jurisdictions for violations of the law.

"If we request that foreign countries investigate, on our behalf, conduct that is legal in the foreign state, we must be prepared to receive and act upon foreign requests for assistance when the conduct complained of is legal, or even constitutionally protected, in the United States," Sutin explained.

He also challenged as potentially unconstitutional some "vague" language in the bill that could be "construed to apply to persons who do not have the intent to participate in or assist illegal gambling transactions."

Critics of Internet gambling prohibition immediately hailed Sutin's letter as vindication for their position.

"It's a very detailed analysis that not only points out all the flaws in the specific legislation but bolsters our argument, which is to come up with a regulatory scheme," said Sue Schneider, editor of Rolling Good Times Online, an online gambling magazine. She pointed to legislation Australia recently enacted that places strict regulatory oversight on Internet gambling, rather than banning it outright.

Kyl's office issued a statement that promised to "examine" Sutin's comments "to see if they are constructive." The bill already has been modified to allow online horse betting and state lotteries. The statement did not say whether the senator was open to further changes.

"The Justice Department appears to agree with the goal of and need for the legislation," the statement noted. "In addition, the department admits that 'the Internet may have diminished' the effectiveness of current gambling statutes and that it supports 'amending the federal gambling statutes.'"

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