September 1st, 2009
Third Circuit upholds online gambling ban
Is the 2006 ban on Internet gambling Constitutional? Online gaming interests have argued that the federal law is impermissibly vague and violates an individual’s privacy rights when gambling in the privacy of home. But Tuesday, a three-judge panel of the Third Circuit Court of Appeals found the law is constitutional, Law.com reports.
In Interactive Media Entertainment & Gaming Association v. Attorney General of the United States, the panel found the la “clearly provides a person of ordinary intelligence with adequate notice of the conduct that it prohibits.”
The industry’s argument was that the law’s use of “unlawful Internet gambling” was unworkably vague. Consider, George Washington University law professor Stephen A. Saltzburg the situation in which a gambler in a state that prohibits all gambling makes a bet over the Internet with a gambling business in a foreign jurisdiction that permits such activity. How do you regulate that?
Simple, the court said. You look at the location of the gambler and the location of the online casino. If the gambler is in a state where online gambling is illegal, it’s “unlawful gambling activity.” The underlying state laws control.
It bears repeating that the act itself does not make any gambling activity illegal. Whether the transaction in Interactive’s hypothetical constitutes unlawful Internet gambling turns on how the law of the state from which the bettor initiates the bet would treat that bet, i.e., if it is illegal under that state’s law, it constitutes ‘unlawful Internet gambling’ under the act.
More interesting to me was the privacy argument, that the government shouldn’t intrude on what does in the privacy of the home. Here, the court took a dim view of a privacy right to gamble. The industry relied on several cases that overturned laws regulating sex - the famous Lawrence v Texas Supreme Court case and a 5th Circuit decision striking down a law regulating the sale of sex toys.
Those cases concerend “the most private human conduct, sexual behavior, and in the most private of places, the home.” Unlike sex, gambling is not an inherently private activity. By contrast, the court found that “gambling, even in the home, simply does not involve any individual interests of the same constitutional magnitude” and therefore “is not protected by any right to privacy under the Constitution.”
An appeal to the full Third Circuit is possible.
