Forum Moderators: phranque
Republican Senators attached the ban amendment to a bill on port security, ensuring that it would pass. The measure attempts to stop the money flow, by making it illegal for banks to process online gambling transactions. Banks protested that they have no way of knowing whether transactions are gambling-related or not. But that doesn't matter now, the bill now goes to the President, who will sign it.
Gambling affiliates are freaking out, as you might suspect.
It doesn't surprise me the legislation focuses on the financial transactions side.
The interpretation at igaminglaw seems to be that it doesn't actually make anything illegal. It is simply creating an enforcement framework. If that is the case, then nothing really changes for affiliates.
The section quoted by greenleaves looks bad, but if you then look at what the definition of a "interactive computer service" is, it is NOT a website.
From the Communications act of 1934 that is referenced..
INTERACTIVE COMPUTER SERVICE.--The term ''interactive
computer service'' means any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server, including specifically a service or system that provides access to the Internet and such systems operated or services offered by libraries or educational institutions.
So an interactive computer service is a gateway to the internet, not a specific website.
In addition, the bill states -
IN GENERAL.--Relief granted under this section against an interactive computer service shall--
``(A) be limited to the removal of, or disabling of access to, an online site violating section 5363, or a hypertext link to an online site violating such section, that resides on a computer server that such service controls or operates
Again, this is dealing with the interactive computer service and not a specific webmaster, but regardless, it states it is limited to either blocking access to or removing the hyperlink only.
Again, I'm not a lawyer and will certainly be getting a lawyers opinion, but the more I read through it and check out the references, the more it looks like affiliates aren't necessarily at risk (or at least not as much as I first thought when I read the bill).
You are right about the general part, but don't forget the exception:
"(1) IN GENERAL. --- Relief granted under this section ... except that the limitation in this subparagraph shall not apply if the service is subject to liability under this section under section 5367;...
"5367 Circumventions prohibited
"Notwithstanding section 5362(2), a financial transaction provider, or any interactive computer service or telecommunications service, may be liable under this sub-chapter if such a person has actual knowledge and control of bets and wagers, and---
Notice how it mentions telecommunications service. I believe a website is a telecommunication service. And I believe if I am an affiliate to an "illegal gambling site" I would be considered to have knowledge.
The main thing that may save anyone involved in the industry is the definition of "illegal gambling site". I couldn't quite understand how they defined that. I did understand that horse racing and state lotteries were exempt from this new enforcement act. When I read the act I feel I am an archeologist deciphering some cryptic language (and not doing a great job at it either).
If you are right that there will be no problem for affiliates, I will be more than overjoyed.
To all who seek legal advice in terms of the legal situation for gambling affiliates in the US, or for US citizens, please post your findings, I will greatly appreciate it.
In regards to the section you just pointed out, my interpretation of that section is that it is basically saying that ISP's (interactive computer systems/telecommunication systems) etc. will not be held liable UNLESS they are found to be running an online casino.
In the section I quoted it stated that liability would be limited to removal or blocking of the site so this section makes an exception in case the ISP is also in the online casino business.
Again, I'm the farthest thing from a lawyer but that is my interpretation of it.
The only other thing I am worried about is this:
The greatest danger here would seem to be with affiliates. Any American operator can be easily grabbed. This includes sites that don’t directly take bets, but do refer visitors to gaming sites. If the affiliate is paid for those referrals by receiving a share of the money wagered or lost, it would not be difficult to charge the affiliate with violating this law, under the theory of aiding and abetting. Being a knowing accomplice and sharing in the proceeds of a crime make the aider and abettor guilty of the crime itself. The federal government could also charge the affiliate with conspiracy to violate this new Act.
If the info from the above quote is to be believed, it's going to make thousands and thousands of people criminals overnight.
As a company we've designed banners and websites for affiliate poker companies, would we be criminals for working for these sites?
I hope they've got broadband in the cells!
Those online casino companies should have been more generous I guess with their cash...NFL got this for just $700K apparently
Anyway, as greenleaves posted, it's the aiding and abetting that I'm unsure of and have absolutely no real knowledge of. I am in touch with a lawyer and hopefully will have more info within the next 24-48 hours.
[GamblingAds.com...]
In very brief summary:
(1) Carrying ads for online gambling isn't specifically outlawed, anywhere.
(2) If the feds want to get you, they have to charge you with being a *partner* to the illegal activity (i.e., if you're an affiliate getting paid by revenue-share), or that you're aiding & abetting the illegal activity by simply linking to the gambling site (no matter how you're getting paid).
(3) #2 only matters if the sites you're advertising are violating U.S. law. That would mean they either accept bets on sports from U.S. players (sports bets violate the Wire Act, but casino/poker bets don't) or they take player money directly through the U.S. banking system (the new Safe Ports UIGEA bill). If the casino/poker room isn't breaking U.S. law, then neither are you.
(4) The charge of partnering or aiding & abetting is probably a stretch. The info-site Casino City sued the Dept. of Justice a while back and the court said that merely carrying advertising wasn't aiding & abetting. To my knowledge, no U.S. webmaster has ever been charged for simply accepting ads for online gambling. When the DoJ targeted some major media outlets in 2003 (e.g., Google, Yahoo, print magazines), they sent them warning letters first. Nobody got charged. One magazine did get fined, for taking six months to remove its ads, and the fine was limited to the revenue they received from the ads.
So it looks like the risk to webmasters is small. Though be warned: I am not an attorney and god help you if you rely on this without proper legal counsel.
First, let me start with his conclusion. That is that as affiliates, we are at very little risk.
The original wire act is very specific on sports betting, but it does not really cover online casinos. That is his interpretation of course, but most other experts tend to agree.
The new bill does not change any previous laws. This means that for an act to be considered illegal, it must be considered illegal under the original wire act or be outlawed at the state level.
In other words, if it wasn't illegal prior to this bill, it still isn't illegal. The only difference is they now have an enforcement mechanism in place.
Now, there are about 11 states that seem to have some laws specifically outlawing online gambling. Those states seem to be
South Dakota, Nevada, Oregon, Wisconsin, Washington State, Indiana, Louisiana, Michigan, Illinois, New York and New Jersey
In those states it does seem to be illegal to gamble online. Of course, it already was illegal in those states, now it is just more enforceable.
So...what if one of our visitors is from one of those states? Then we *could* be considered aiding and abetting, but it is, as Michael said, a bit of a stretch.
Let's look at the first part of section 5363
No person engaged in the business of betting or wagering may knowingly accept, in connection with the participation of another person in unlawful Internet gambling
The real key in the above quote is "knowingly". As affiliates, we really don't know the location of the individual. We may have their IP address, but most publicly available geolocation programs are not very accurate.
As such, are we actually "knowingly" breaking the law? It could be argued, but it would be a hard argument. The only people that actually know the real address is the casino once they are signed up and by that time, the person is off our site and we know nothing more about them.
So...for it to come back on us as affiliates...
1) The transaction would have to first be proved to be unlawful. To do that, it would have to be unlawful at the state level (again, the wire act doesn't seem to cover online casinos).
2) They would then have to prove we knowingly aided and abetted which would be extremely hard to prove.
What it comes down to is we are not the real targets, and we are most likely not the ones they will come after. If they ever did, the most that would be likely to happen is an injunction (i.e. having our sites removed) so we should keep backups of our site so we can move if ever necessary.
Don't take anything I have said as legal advice, even my lawyer said that different lawyers would likely have different opinions on this situation. This was my counsel and tailored to my situation. Yours may vary so you should consult your own attorney as I have done
If you had a balance you can withdraw it.
If you had pending seats in any tournament (such as Monster Poker which is now cancelled) they are paying out an amount for each unused seat you had. They paid me out over $1800. :-)
As I am not an American however I used a US bank to fund my account I will now have to seek other means to get reinstated.
It's a real shame that this has happened.
You mean it is just a coincidence that instead of linking to gambling-site_com you linked to gambling-site_com?your_aff_id and that ID was linked to an account you had opened and that paid you $xx for each referral?
You better hope they don't come after you, but if they do, you're toast. You seem to think that they're a bunch of idiots. Even IF you manage to win, your life will be destroyed and you will be penniless.
The fact is there are only 11 states I know of that actually have laws on the books that outlaw online gambling.
Yes, being an affiliate puts you at some risk, but the fact is, again, you have to KNOWINGLY do something that is unlawful. Since only 11 states seem to have these laws the person would have to reside in one of those states. They would then have to prove that I KNEW they resided in that state which I don't. At least at my site, all I know is their IP address and email address...nothing more.
All I have is their IP and geolocation services are NOT accurate. In fact, I tested a fairly popular one out today and it told me I was in New York City and I happen to be in Texas on a DSL connection.
Again, this is a lawyers interpretation. His feelings are that yes there is SOME risk, but it is fairly small and that for the most part they will be going after the actual companies (i.e. the big fish).
Once again, I am not 100% sure, but use of wires or bank facilities for a "crime" falls under Federal authority so the fact that it's legal in your state may mean jack, especially if you use them to send money or whatever from state A to B. Check with a lawyer who does this for a living.
My point is that this is a minefield; maybe the ones raking in millions a month can afford the legal power to sift through it, the small fish cannot take the chance, unless there's a gambling association lawyer who breaks it down for all.
If the feds come after you can count on being charged with dozens of criminal violations and all of the sudden you may face some 200 years. After they send the message to others, they may offer a deal for 30 months in jail and every penny you have ever made. Very generous of them ;)
Yes, I keep saying, there is risk, but for affiliates it is really fairly minimal. If someone was an 800 pound online casino gorilla, then they could be at more risk, but the normal affiliate is at far less risk.
To make it even less risky, a large number of casinos etc. have either stopped accepting US players or stopped accepting players from the states where it is illegal to gamble online.
In this case, if an affiliate were to promote one of these companies, there would be almost NO risk because none of the players would be playing unlawfully (it's legal in their state and as a result the transaction is NOT considered unlawful under any federal or state law).
This bill does not make any new laws, only enforcement mechanisms. For a transaction to be considered restricted, it must be considered unlawful at either the state level or by the wire act and the wire act deals with sports betting. That leaves most of the U.S. still arguably legal.
[edited by: Philosopher at 4:01 am (utc) on Oct. 14, 2006]
This just scratches the surface, so if you're tempted to argue with the above, please read the whole article I'm referencing *first*. Thanks. :)
you have to KNOWINGLY do something that is unlawful.
If you publish information with the sure and certain knowledge that is can be viewed by anyone then, if it is illegal to provide that information to people in some locations, then surely, all that is needed to establish guilt is a single provable example (since you knew that it could happen).
To understand this logic, think safety. A manufacturer of break pipes would be breaking the law if they knew that a given percentage of them were probably faulty. It would not be necessary to prove that the manufacturer knew that a single particular brake pipe was faulty, to establish guilt it would only be necessary to prove that the manufacturer knew that some were probably faulty and one provable example failed.
Of course, this does raise a huge legal/ethical question? Clearly, webmasters that publish information that is considered to be subversive by the Chinese Government could be accused of breaking Chinese Law despite living in another country. I don't think anyone would support extradition to China in such circumstances, nevertheless, it is always advisable to stay well within the laws of the country in which you reside.
Kaled.
Well I just had a nice long talk with a lawyer I retained on this matter so I thought I would post some of what we discussed.
Thank you for posting, Philosopher.
Either way, it doesn't matter. I'm stating a lawyers interpretation. If you want to argue against someone who's job it is to interpret the law go ahead. ;)
As for me, after the research I have done on my own ( which has been many hours worth) and talking with a lawyer who also did quite a bit of research, I feel comfortable with the amount of possible exposure I may or may not have.
Obviously there will be others who don't like the risk. If that's the case, don't become a casino affiliate. ;)
If you publish information with the sure and certain knowledge that is can be viewed by anyone then, if it is illegal to provide that information to people in some locations....
Kaled, it sounds like you didn't actually read the article in question, just like Walkman. There is nothing in the law that criminalizes "providing or publishing information" -- whether you're aware of how it's used or not.
Now, *advertising* online gambling might be another matter, but there again there's a whole truckload of caveats detailed in the article.
If the analogy is faulty, please explain - I thought I picked a pretty good example but I'm always willing to learn.
When I said "publish information" I meant "link to/advertise" but I didn't want to be quite that specific. However, I accept that it was ambigious.
Kaled.
In summary, the law says nothing about advertising online casinos specifically. That means that the govt. would have to contend that a webmaster is a partner of the casino, or has aided & abetted the casino (both similar, but not exactly the same). Most legal observers feel this is a bit of a stretch, and no webmaster has ever been charged with such a second-hand crime in the online gambling arena. In your example culpability was a lot clearer.
Also, for the webmaster to be breaking the law even in theory then the casino has to be breaking the law, and most of them don't. What's criminalized is taking player money through the U.S. banking system, or taking sports bets (not casino/poker). There is no ban on Internet gambling in general.
There's also the issue of specific states that have anti-gambling laws, and that's addressed in the article.
Kaled.
Not neccesarily, you could be writting (exercising you freedom of speech) about casinos, how the operate, pros, cons etc. However, when you link using your aff id instead of a plain link to gambling++page+com, it's hard to say you weren't helping them (and yourself) to gain more business.
Point well taken about the likelyhood of such action by the feds on small affiliates, but if they do, you'd be naive if you think you can fool them or a jury.
