Wire Act lingers on in IGT lawsuit against Department of Justice

The DOJ's statement only names one person directly.
Haley Hintze
Haley Hintze
Posted on: December 6, 2021 19:57 PST

"Whoo-hoo-hoo, look who knows so much," said Miracle Max in The Princess Bride, referring to the movie's seemingly dead hero, Westley. "It just so happens that your friend here is only mostly dead. There's a big difference between mostly dead and all dead. Mostly dead is slightly alive." That "mostly dead" description could be applied to something rather more important to online gambling and online poker, and that's the 1961 Wire Act, which was the law of the land in the U.S. for nearly 60 years. The Wire Act was no friend to online poker, but otherwise, the metaphor might apply.

A bit of history: For nearly two decades, the Wire Act was wielded as a major tool against the legalization of nearly all forms of online gambling until it was significantly narrowed in scope by a US Court of Appeals ruling issued earlier this year. The case involved two agencies working for the New Hampshire Lottery, and they prevailed in the matter when the Department of Justice chose not to attempt an appeal to the U.S. Supreme Court.

Because of the way the Wire Act was written, New Hampshire's win meant virtually all other forms of online gambling, including online poker, were no longer apparently forbidden under U.S. federal law. (Whether they ever were is a separate question.) Yet it turned out that there's still one small hitch in the situation, hence the "mostly dead" description of the Wire Act. Due to the way the ruling in the New Hampshire case was narrowly crafted, there's still a slim chance that the ruling could be deemed to apply only to New Hampshire's lottery interests.

By allowing the matter to drop without attempting to appeal to the Supreme Court, the DOJ left that question technically unresolved, including a 2018 opinion issued by the Trump-era DOJ that actually expanded the Wire Act's reach. It's still on the books and remains in effect, even if the DOJ has shown no interest in attempting to enforce it. And while the U.S. has seen a state-by-state land rush into various forms of online gambling, especially sports betting, there's still a bit of legal concern that under an anti-online gambling administration, the 2018 DOJ reversal on the Wire Act could be re-activated.