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DOJ 'did not address' lotteries in Wire Act opinion, Deputy AG Rosenstein says in memo

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Insider BuzzInsider Buzz: DOJ 'did not address' lotteries in Wire Act opinion, Deputy AG Rosenstein says in memo

A new memo from the US Department of Justice says that state lotteries are not at all impacted by the DOJ's reinterpretation of the Wire Act, a development that could mean the end of a federal court case brought earlier this year.

(See New Hampshire sues DOJ over new Wire Act ruling, Lottery Post, Feb. 15, 2019.)

The latest filing from the DOJ can be found below, including a memo signed by Deputy Attorney General Rod Rosenstein. There, he talks about the Office of Legal Counsel opinion offered earlier this year.

In the April 8 memo, he says the DOJ did not conclude that lotteries are impacted by the new opinion, which replaced the 2011 OLC opinion that stated the Wire Act applies only to sports betting. The newer opinion implies that all forms of interstate gaming are impacted by the Wire Act.

Sources believe this move is an attempt to scuttle the federal case brought by the New Hampshire state lottery and limit the scope of the OLC memo to online gambling that is not conducted by lotteries.

It's not clear how the DOJ can draw such a line, as many forms of the lottery — from Powerball to online lotteries — have at least an interstate component.

In the case of large multi-state lottery games, that interstate nature is extremely obvious. That is why the NH Lottery brought the case and is supported by a number of other states that have lotteries in the case. Online lotteries — like online gambling and poker — have some amount of data that likely crosses state lines, in addition to payments that are often interstate in nature.

The original 2011 OLC opinion also came at the request of a couple of state lotteries, so the DOJ's assertion that lotteries were not considered is head-scratching at best.

Wire Act, not for lotteries?

Rosenstein walked back the idea that lotteries are impacted in the memo, which is addressed to the FBI and US attorneys around the country:

On January 15, 2019, I issued a memorandum titled "Applicability of the Wire Act, 18 U.S.C. § 1084, to Non-Sports Gambling," directing you to refrain from applying Section 1084(a) in criminal or civil actions to persons who engaged in conduct violating the Wire Act in reliance on the 2011 opinion of the Office of Legal Counsel (OLC), and for 90 days after the publication of OLC's revised 2018 opinion. My memorandum of February 28, 2019, extended the window until June 14 ,2019.

The OLC opinion did not address whether the Wire Act applies to State lotteries and their vendors. The Department is now reviewing that question. Department of Justice attorneys should refrain from applying Section I 084(a) to State lotteries and their vendors, if they are operating as authorized by State law, until the Department concludes its review. If the Department determines that the Wire Act does apply to State lotteries or their vendors, then Department of Justice attorneys should extend the forbearance period for 90 days after the Department publicly announces this position. This would allow State lotteries and their vendors a reasonable time to conform their operations to federal law.

DOCUMENT: Read the full DOJ filing

Online Poker Report, Lottery Post Staff

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6 comments. Last comment 2 months ago by Bleudog101.
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United States
Member #174652
May 5, 2016
1093 Posts
Offline
Posted: April 10, 2019, 4:32 pm - IP Logged

A new memo from the US Department of Justice says that state lotteries are not at all impacted by the DOJ's reinterpretation of the Wire Act, a development that could mean the end of a federal court case brought earlier this year.

(See New Hampshire sues DOJ over new Wire Act ruling, Lottery Post, Feb. 15, 2019.)

The latest filing from the DOJ can be found below, including a memo signed by Deputy Attorney General Rod Rosenstein. There, he talks about the Office of Legal Counsel opinion offered earlier this year.

In the April 8 memo, he says the DOJ did not conclude that lotteries are impacted by the new opinion, which replaced the 2011 OLC opinion that stated the Wire Act applies only to sports betting. The newer opinion implies that all forms of interstate gaming are impacted by the Wire Act.

Sources believe this move is an attempt to scuttle the federal case brought by the New Hampshire state lottery and limit the scope of the OLC memo to online gambling that is not conducted by lotteries.

It's not clear how the DOJ can draw such a line, as many forms of the lottery — from Powerball to online lotteries — have at least an interstate component.

In the case of large multi-state lottery games, that interstate nature is extremely obvious. That is why the NH Lottery brought the case and is supported by a number of other states that have lotteries in the case. Online lotteries — like online gambling and poker — have some amount of data that likely crosses state lines, in addition to payments that are often interstate in nature.

The original 2011 OLC opinion also came at the request of a couple of state lotteries, so the DOJ's assertion that lotteries were not considered is head-scratching at best.

Wire Act, not for lotteries?

Rosenstein walked back the idea that lotteries are impacted in the memo, which is addressed to the FBI and US attorneys around the country:

On January 15, 2019, I issued a memorandum titled "Applicability of the Wire Act, 18 U.S.C. § 1084, to Non-Sports Gambling," directing you to refrain from applying Section 1084(a) in criminal or civil actions to persons who engaged in conduct violating the Wire Act in reliance on the 2011 opinion of the Office of Legal Counsel (OLC), and for 90 days after the publication of OLC's revised 2018 opinion. My memorandum of February 28, 2019, extended the window until June 14 ,2019.

The OLC opinion did not address whether the Wire Act applies to State lotteries and their vendors. The Department is now reviewing that question. Department of Justice attorneys should refrain from applying Section I 084(a) to State lotteries and their vendors, if they are operating as authorized by State law, until the Department concludes its review. If the Department determines that the Wire Act does apply to State lotteries or their vendors, then Department of Justice attorneys should extend the forbearance period for 90 days after the Department publicly announces this position. This would allow State lotteries and their vendors a reasonable time to conform their operations to federal law.

DOCUMENT: Read the full DOJ filing

America doing the right thing Eek😱

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    Avatar
    Kentucky
    United States
    Member #32651
    February 14, 2006
    8461 Posts
    Offline
    Posted: April 10, 2019, 6:15 pm - IP Logged

    The OLC opinion did not address whether the Wire Act applies to State lotteries and their vendors. The Department is now reviewing that question.

    Don't we have enough other problems that DOJ should be involved with rather than opening the door for "states rights" lawsuits?

      Avatar
      Simpsonville
      United States
      Member #163184
      January 22, 2015
      1869 Posts
      Offline
      Posted: April 10, 2019, 8:13 pm - IP Logged

      The OLC opinion did not address whether the Wire Act applies to State lotteries and their vendors. The Department is now reviewing that question.

      Don't we have enough other problems that DOJ should be involved with rather than opening the door for "states rights" lawsuits?

      Stack47, you know how I feel about that crappy 1961 law and agree with you 100%.  States rights should trump Federal busybodies.

        Avatar
        casper wyoming
        United States
        Member #136341
        December 9, 2012
        95 Posts
        Offline
        Posted: May 7, 2019, 8:43 pm - IP Logged

        Once again this "administration" touches something and completely <snip>s it up.

        This post has been automatically changed by the Lottery Post computer system to remove inappropriate content and/or spam.

          Avatar
          NY
          United States
          Member #23834
          October 16, 2005
          4102 Posts
          Offline
          Posted: May 8, 2019, 1:03 pm - IP Logged

          "states rights"

          Not that a state can't file a lawsuit about whatever upsets them, but there's absolutely zero issue about states' rights here. The commerce clause specifically gives congress the power to "regulate Commerce ... among the several States ...". It gets used for a lot of things it shouldn't, but there's absolutely no question that interstate gambling is a form of interstate commerce among the states. If the federal government tried to ban all state lotteries they'd have to stretch the meaning of the commerce clause, though not as far as it's been stretched many times in the past. OTOH, if they decided to prohibit multi-state games like PB and MM it would be well within their authority.

          Of course congress hasn't prohibited multi-state lotteries, and what the justice department thinks congress intended isn't what determines the actual meaning of the Wire Act's provisions. If there's any ambiguity, and there very clearly is, it's up to the courts to interpret its meaning. If somebody is charged with a crime any ambiguity should be interpreted in their favor, because if it's not clear that congress intended to make something illegal it isn't illegal. One thing that just about everybody can agree on is that the Wire Act is not an example of clear and obvious meaning. Courts can be wildly inventive in their interpretation of meaning, but I think it should be clear that ambiguity makes it unclear if congress intended for the wire act to apply to  types of gambling other than sports betting.

            Avatar
            Simpsonville
            United States
            Member #163184
            January 22, 2015
            1869 Posts
            Offline
            Posted: May 8, 2019, 1:36 pm - IP Logged

            "states rights"

            Not that a state can't file a lawsuit about whatever upsets them, but there's absolutely zero issue about states' rights here. The commerce clause specifically gives congress the power to "regulate Commerce ... among the several States ...". It gets used for a lot of things it shouldn't, but there's absolutely no question that interstate gambling is a form of interstate commerce among the states. If the federal government tried to ban all state lotteries they'd have to stretch the meaning of the commerce clause, though not as far as it's been stretched many times in the past. OTOH, if they decided to prohibit multi-state games like PB and MM it would be well within their authority.

            Of course congress hasn't prohibited multi-state lotteries, and what the justice department thinks congress intended isn't what determines the actual meaning of the Wire Act's provisions. If there's any ambiguity, and there very clearly is, it's up to the courts to interpret its meaning. If somebody is charged with a crime any ambiguity should be interpreted in their favor, because if it's not clear that congress intended to make something illegal it isn't illegal. One thing that just about everybody can agree on is that the Wire Act is not an example of clear and obvious meaning. Courts can be wildly inventive in their interpretation of meaning, but I think it should be clear that ambiguity makes it unclear if congress intended for the wire act to apply to  types of gambling other than sports betting.

            Well not that I'm a user, but looks @ the states that have passed marijuana bills.  The DEA is dead set against this, but they do it anyway.   The fall of the Roman empire these past couple of years IMO.