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Tuesday, June 28, 2011

Black Friday: The DOJ's Campaign Of Fear

K. Preston Oade, J.D. & Arthur S. Reber, Ph.D.

Much of what has been written about Black Friday is not correct. Here, a lawyer and a psychologist outline the law, discuss the psychology of the situation, and urge players to keep playing online.  

1. It is not illegal to play poker online. The Unlawful Internet Gambling Enforcement Act (UIGEA) did not change existing federal gambling law.  It just prohibits the transmission of wagers that are “unlawful under any applicable Federal or State law…” The “applicable federal” law is the Wire Act of 1961. Thus if it is not illegal under the Wire Act, it is not illegal under the UIGEA. Federal Courts have ruled that the Wire Act does not apply to poker, but only covers sports betting

While the UIGEA references state laws, only a very few states such as Washington and Nevada, specifically prohibit playing poker online. 

2. It is not illegal for a bank to transfer money to an online poker site. This is true by virtue of the above.  Banks, however, are risk averse, which has led to the problems identified below.

3. Banks stopped deposits for the wrong reasons. Some mistakenly believed that the UIGEA might apply to poker or were concerned that a poker site might also offer wagers on sports betting.  Others concluded it was too difficult to determine which payments were legal and simply blocked all deposits to offshore sites.

4. The sites set up “front” companies. To circumvent blocked deposits, online sites set up shell companies. A player’s deposit to Poker Stars was not recorded as a transaction with Stars, but with say, Henry’s Plant Store. Federal banking laws, however, make it illegal to hide the true nature of a transaction or transacting parties’ identities. This is the real basis for the indictments.

5. Don’t be deceived by the indictments.  The DOJ is using misdirection to further its campaign of fear  and to convince others  that the UIGEA has real legal teeth. In fact, the defendants are charged with  money laundering and bank fraud. The DOJ threw the UIGEA into the pot to confuse and intimidate everyone, especially the poker community. 

6. Expect guilty pleas. We anticipate guilty pleas because the bank fraud changes appear to be on sound legal footing.  But don’t confuse these pleas with poker or the UIGEA. They do not change the fact that without the bank fraud changes the government does not have a case.

7. The government’s poker game. The DOJ “plays poker” at a very high level, but uses the law instead of a deck of cards and is careful to make sure it will never have to turn over its real hand. In effect, the DOJ is bluffing poker players.  The DOJ is assuming that poker players and the general public will confuse traditional bank fraud charges with the UIGEA. Thus the DOJ’s Black Friday press release emphasized the UIGEA, not the traditional bank fraud charges.

8.  Stop the fear.  The DOJ wants to scare poker players to stop us from continuing to play online. It is a war of wills, and  the DOJ is winning. But it cannot win in the long term unless we abandon online play. The  outcome of this fight is in our hands as poker players. Collectively, we control the outcome. If we want it enough, we cannot lose. And if we don’t want it enough, we deserve to lose.  

9. Keep playing at websites that accept US players. They offer a variety of deposit methods including direct deposits, third-party payment processors like Pay Pal, and paper checks. As long as the identities of all participants are open and knowable the deposits are legal. 

10. Be careful, however, about using a poker website that also offers sports betting, which falls under the Wire Act and makes it a “gambling” website under federal law—in which case the UIGEA applies. Stick to poker websites only.  Also be careful to manage your money. Deposit only what you can afford to lose and keep your account at an acceptable level of risk by making regular withdrawals. This avoids having too much money on deposit with the next DOJ target.  Most of the easy targets, however, are already gone.   

Law Professor Nelson Rose on his blog, GamblingAndTheLaw.com, observes that the DOJ has announced “showy legal action against easy targets about every other year,” but lacks “a statute that clearly makes the activity illegal.”  He points out that although these scare tactics have driven some from the U.S. market, “there are now wonderful opportunities for new operators to fill the vacuum. Unless of course Americans are actually going to stop playing poker on the Internet.”